Ozland Crossroads Housing Estate Pty Ltd ATF Ozland Crossroads Housing Estate v Campbelltown City Council

[2024] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ozland Crossroads Housing Estate Pty Ltd ATF Ozland Crossroads Housing Estate v Campbelltown City Council [2024] NSWLEC 1362

Hearing dates:

Conciliation conference 19 March 2024, 9 May 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant shall pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $10,000 within 14 days of the date of this order.

(3) Development Application No. 1202/2023/DA-SW for the boundary adjustment to incorporate the rear eastern portion of Lot 1 DP 122424 into Lot B DP 346530, consolidation of 6 existing lots, demolition of existing structures, tree removal, construction of roads, civil and bulk earthworks, associated works and subdivision to create 21 Torrens title lots, on the land as described at [2] of this judgment, as amended, is determined by grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision, demolition, tree removal, bulk earthworks, road constriction and associated works – conciliation conference – amended plans – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Campbelltown Local Environmental Plan 2015, cll 2.3, 2.6, 2.7, 4.1, 5.10, 7.2, 7.4, 7.10, 7.18

Environmental Planning and Assessment Regulation 2021, s 23

State Environmental Planning Policy (Biodiversity and Conservation), Chs 2,6, ss 2.3, 6.1, 6.6, 6.7, 6.8, 13.7, 13.11, 13.15

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.77, 2.119, 2.120

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Campbelltown City Council Community Participation Plan, July 2019

Campbelltown City Development Control Plan 2015

NSW Rural Fire Service Planning for Bushfire Protection, November 2019

Category:

Principal judgment

Parties:

Ozland Crossroads Housing Estate Pty Ltd ATF Ozland Crossroads Housing (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
A Kliese (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/252950

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application 1202/2023/DA-SW. The development application, as amended, seeks development consent for the consolidation of six existing lots, demolition of existing structures, removal of trees, construction of roads, civil and bulk earthworks and subdivision to create 21 Torrens title lots.

2. The site of the proposed development comprises the following allotments (Site):

• 35 Eleanor Drive, Glenfield NSW 2167 (Lot 98 DP 270660);

• Lot 1 Campbelltown Road, Glenfield NSW 2167 (Lot 1 DP 122424);

• Lot B Campbelltown Road Glenfield NSW 2167 (Lot B DP346530);

• Lot 424 Matilda Lane, Glenfield NSW 2167 (Lot 424 DP 1171573);

• Lot 425 Matilda Lane, Glenfield NSW 2167 (Lot 425 DP 1171573); and

• Lot 426 Eleanor Drive, Glenfield NSW 2167 (Lot 426 DP1171573).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 19 March 2024. The conciliation conference was adjourned to allow the parties to continue discussions. Following the conciliation, the parties have reached an agreement as to the resolution of the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. As the Development Application was lodged after 1 March 2022, the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) applies. The development application is made with the consent of the owners of the land: s 23 of the EPA Regulation.

2. The development application was notified by the Respondent in accordance with the Campbelltown City Council Community Participation Plan 2019 between 18 April 2023 and 10 May 2023. No submissions were received.

3. The Development Application is integrated development under s 4.46 of the EPA Act, as parts of its southern boundary are mapped as bushfire prone land pursuant to s 100B of the Rural Fires Act 1997.

1. The development application includes a Bushfire Assessment and Recommendations prepared by Sydney Bushfire Consultants dated 21 February 2023, which concludes that the proposed development is capable of complying with the requirements of NSW Rural Fire Service Planning for Bushfire Protection 2019, subject to recommendations.

2. Further, the NSW Rural Fire Service has issued a Bushfire Safety Authority pursuant to section 100B and General Terms of Approval (GTAs) which are adopted in the agreed conditions of consent: s 4.47(3) of the EPA Act.

3. The amended development includes details addressing the matters raised in the GTA’s and incorporates the recommendation of the bushfire assessment.

4. I am satisfied that despite part of the site being mapped as bushfire prone land the site is able to be developed as a residential subdivision as a Bushfire Safety Authority has been obtained and the amended development application is consistent with that certificate.

5. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Chapter 2 ‘Vegetation in Non Rural Areas’ applies to the development application. The proposed tree removal has been assessed in the arboricultural assessment which forms part of the development application. That assessment concludes that the proposed removal of forty-three trees is consistent with the provisions of SEPP BC when consideration is given to the tree species, integrity, level of significance and replacement planting proposed in the landscaping strategy for the site. The parties agree, and I accept, that the relevant provisions of Chapter 2 of SEPP BC are met.

6. Pursuant to s 6.1 of SEPP BC, Chapter 6 ‘Water Catchments’ applies as the site is located within the Georges River Catchment. Division 2 of Chapter 6 includes controls on development which a consent authority in determining the development application must give consideration to.

7. With reference to those matters listed the parties agree and with reference to the materials in the development application, I accept that the development will:

1. have a neutral effect on the quality of water entering any nearby waterway and will not have an adverse impact on waterflow of any nearby natural waterbody pursuant to s 6.6 of SEPP BC,

2. not have a direct, indirect or cumulative adverse impact on any terrestrial, aquatic or migratory animals or vegetation or wetlands pursuant to s 6.7 of SEPP BC;

3. not impact any periodic flooding that benefits wetlands and other riverine ecosystems as the site is not flood affected pursuant to s 6.8 of SEPP BC;

4. unlikely to have an impact on recreational land uses in the regulated catchment or have any impact to public access to and around foreshores pursuant to s 6.9 of SEPP BC; or

5. not likely have any adverse environmental impact to any adjacent or downstream local government area pursuant to s 6.10 of SEPP BC.

8. Chapter 13 of SEPP BC relates to strategic conservation planning and the site is mapped pursuant to the Land Application Map in s 13.1. However, the site is not mapped as avoided land or as being located within a strategic conservation area or on certified urban capable land pursuant to ss 13.7, 13.11 and 13.15. The removal of vegetation on site has been assessed as suitable by the Updated Arboricultural Assessment prepared by Urban Tree Management. The requirements of Chapter 13 are satisfied.

9. The development application is work within 5m of an overhead electricity power line. Pursuant to s 2.48(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) the consent authority is required to firstly give written notice to the electricity supply, and secondly take into account any comments received within 21 days. The Development Application was referred to Endeavour Energy, who raised no objections to the proposal subject to appropriate conditions of consent in their response dated 18 May 2023. These conditions have been included within the agreed conditions of consent in Annexure A.

10. The site is adjacent to a pipeline corridor, as such s 2.77 of SEPP TI requires that a consent authority must consider three things. Firstly, that the potential safety risks or risks to the integrity of the pipeline that are associated with the development to which the application relates have been identified. Secondly, that the consent authority considers those risks, and finally take into consideration any response from a notified pipeline operator. The Development Application was referred to Jemena, who in their response dated 28 April 2023 raised no objections to the proposal confirming the nature of the works will not impact the nearby Jemena asset.

11. Finally, s 2.119 relates to development with frontage to a classified road. This provision applies to the development application as it has frontage to Campbelltown Road. In compliance with sub cl (2)(a) the development has been designed so that vehicular access is provided via Eleanor Drive, Matilda Land and Northampton Drive. Further, the traffic impact assessment prepared as part of the development application confirms that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the proposed development. The assessment draws this conclusion on the basis that the development provides multiple routes for traffic and the siting of the proposal. Sub cl (2)(b) of SEPP TI is satisfied. Sub cl (2)(c) of SEPP TI requires that the development incorporate appropriate measures to ameliorate potential traffic noise or vehicle emissions arising from the classified road. The development application includes an Acoustic Assessment which details a proposed acoustic wall which will ensure the mandated internal noise levels are achieved. Both s 2.119 (2)(c) and s 2.120 of SEPP TI are met. Compliance with the Acoustic Assessment is required by the conditions of consent in Annexure A.

12. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The development application incorporates the following:

1. In respect of Lot 1 DP 122424 & Lot B DP346530:

1. Stage 1 Preliminary & Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 4 October 2022;

2. Stage 1 Preliminary & Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 10 October 2022;

3. Updated Remedial Action Plan prepared by Sydney Environmental Group dated 19 April 2024;

2. In respect of Lot 98 DP 270660, Lot 424 DP 1171573, Lot 425 DP 1171573 & Lot 426 DP1171573 -

1. Updated Preliminary Site Investigation and Detailed Site Investigation prepared by GeoEnviro Consultancy dated 5 April 2024; and

2. Remedial Action Plan prepared by GeoEnviro Consultancy dated 24 A 2024.

3. The above reports confirm that the site will be suitable for the development proposed following remediation in accordance with the Remedial Action Plans. The annexed conditions of consent require compliance with these remediation plans. I accept that s 4.6 of SEPP RH is satisfied.

13. Campbelltown Local Environmental Plan 2015 (LEP 2015) applies to the site. Pursuant to LEP 2015 the site is zoned R2 Low Density Residential. As required by cl 2.3 of LEP 2015, in determining the development application I have given consideration to the objectives of the zone.

14. As required by cl 2.6 ‘Subdivision’ of LEP 2015, consent is sought in the development application for subdivision of the land.

15. Pursuant to cl 2.7 ‘Demolition’, consent is sought in the development application for the demolition of the existing single storey dwelling and two sheds. I am satisfied that the annexed conditions include appropriate provisions to manage any impacts arising from the proposed demolition works.

16. Pursuant to cl 4.1 ‘Minimum subdivision lot size’, and the Lot Size Map, a minimum lot size of 450m² applies to the site. The plans which accompany the development application confirm that all of the proposed lots are at least 450m² complying with the requirements of cl 4.1 of LEP 2015.

17. To ensure that there is no breach of cl 5.10 of LEP 2015 concerning Aboriginal objects or Aboriginal places of heritage significance, the Applicant has carried out an Aboriginal Due Diligence Assessment that confirms that no Aboriginal objects or Aboriginal places of heritage significance were identified, there is no sub-surface archaeological potential and no further assessment is required before commencement of the works. In determining the development application, I have given consideration to the potential impact of the proposed development on any Aboriginal object, Aboriginal place of heritage significance or archaeological site. On the basis of the information provided in support of the development application and the annexed conditions, I am satisfied that the likelihood of any detrimental impact on such heritage is acceptable.

18. Clause 7.2 ‘Earthworks’ applies as the development application proposes minor earthworks to regrade the site. The development application includes Civil Engineering Plans, including a Bulk Earthwork Cut/Fill Plan, and an Erosion and Sediment Control Plan and Details. Further, appropriate conditions of consent have been included to address required earthworks and the potential impacts of same. In determining the development application, I have considered the matters listed at cl 7.2(3) and I am satisfied that none would warrant the refusal of the development application.

19. The site is not mapped as likely to contain acid sulfate soils land but is agreed by the parties to potentially be affected by salinity, as such cl 7.4 ‘Salinity’ applies. The Applicant has provided Soil Salinity Assessments which confirms the soil of the Site is non-sale, non-aggressive and non-sodic. Further, these assessments detail measures to avoid, minimise and mitigate potential impacts of the Development Application, which have been incorporated into the conditions of consent. Clause 7.4 is satisfied.

20. Pursuant to cl 7.10 ‘Essential Services’ of LEP 2015 states that the consent authority must not grant development consent to development on land to which LEP 2015 applies unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. Public utility infrastructure is defined to include infrastructure for the supply of water, supply of electricity, and the disposal and management of sewage. The parties agree that the site will have access to the essential services identified within this clause due to the nature of the site’s location and surrounding low density developments. Further:

1. The Development Application was referred to Sydney Water for comment pursuant to this clause. A response was provided on 10 May 2023 confirming potable water, wastewater servicing and recycled water servicing will be available for the proposal.

2. The Applicant has now obtained confirmation from Endeavour Energy that a potential method of supply design is acceptable through including a substation on proposed lot 8.

3. Appropriate conditions of consent have been included to address this clause.

21. I am satisfied the requirements of cl 7.10 ‘Essential Services’ are met.

22. Clause 7.18 ‘Restrictions on access to or form public roads’ is satisfied because all vehicular access to the site is by way of other local roads, not roads located within Zone SP2 Infrastructure.

23. Campbelltown Development Control Plan 2015 (DCP 2015) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

1. The Respondent has agreed, pursuant to s 37 of the EPA Regulation, to the Applicant amending Development Application No. 1202/2023/DA-SW to rely on the following amended plans and documents.

Plan Detail	Plan Number	Prepared by	Date
Cover sheet, Drawing List and Locality Plan	Project No. 22103, Drawing No. DA01, Rev I	Diversi Consulting	4 April 2024
Site Plan	Project No. 22103, Drawing No. DA02, Rev F	Diversi Consulting	4 April 2024
Erosion and Sediment Control Plan	Project No. 22103, Drawing No. DA03, Rev F	Diversi Consulting	4 April 2024
Erosion and Sediment Control Details	Project No. 22103, Drawing No. DA04, Rev F	Diversi Consulting	4 April 2024
Demolition and Clearing Plan	Project No. 22103, Drawing No. DA05, Rev G	Diversi Consulting	4 April 2024
Bulk Earthwork Cut/Fill Plan	Project No. 22103, Drawing No. DA06, Rev G	Diversi Consulting	4 April 2024
Earthworks Sections Sheet 1 of 2	Project No. 22103, Drawing No. DA07, Rev G	Diversi Consulting	4 April 2024
Earthworks Sections Sheet 2 of 2	Project No. 22103, Drawing No. DA08, Rev F	Diversi Consulting	4 April 2024
Roadworks and Stormwater Drainage Plan	Project No. 22103, Drawing No. DA09, Rev H	Diversi Consulting	4 April 2024
Road Typical and Long Section Road 1	Project No. 22103, Drawing No. DA10, Rev F	Diversi Consulting	4 April 2024
Road Typical and Long Section Road 2 and 3	Project No. 22103, Drawing No. DA11, Rev F	Diversi Consulting	4 April 2024
Road Typical and Long Section Road 4	Project No. 22103, Drawing No. DA12, Rev F	Diversi Consulting	4 April 2024
Stormwater Catchment Plan	Project No. 22103, Drawing No. DA13, Rev G	Diversi Consulting	4 April 2024
Swept Path Plan	Project No. 22103, Drawing No. DA14, Rev F	Diversi Consulting	4 April 2024
Concept Subdivision Plan	Project No. 22103, Drawing No. DA15, Rev F	Diversi Consulting	4 April 2024
Stormwater Long sections Sheet 1 of 3	Project No. 22103, Drawing No. DA17, Rev E	Diversi Consulting	4 April 2024
Stormwater Long Sections Sheet 2 of 3	Project No. 22103, Drawing No. DA18, Rev E	Diversi Consulting	4 April 2024
Stormwater Long Sections Sheet 3 of 3	Project No. 22103, Drawing No. DA18a, Rev A	Diversi Consulting	4 April 2024
Glenfield Master Plan Overlay	Project No. 22103, Drawing No. DA19, Rev D	Diversi Consulting	4 April 2024
Bin Presentation Plan	Project No. 22103, Drawing No. DA20, Rev A	Diversi Consulting	4 April 2024
Cover Page	Project No. 230907, Drawing No. D.1, Rev 1	Planzone Designs	4 April 2024
Context Analysis	Project No. 230907, Drawing No. D.2, Rev 1	Planzone Designs	4 April 2024
Site Analysis	Project No. 230907, Drawing No. D.3, Rev 1	Planzone Designs	4 April 2024
Report	Prepared by	Date
Traffic Impact Statement, Issue 5	Fernway Engineering	4 April 2024
Acoustic Assessment, Ref No. SYD2023-1001-R001K	Acouras Consultancy	4 April 2024
Arboricultural Impact Assessment, Ref 25033	Urban Tree Management	21 February 2024
Remedial Action Plan, 43B Campbelltown Road, Glenfield NSW, Report No. 1721-RAP-01-270223.v2f	Sydney Environmental Group	19 April 2024
Preliminary Site Investigation/ Detailed Site Investigation Report, Lot 98 DP 270660, Lot 424 DP 1171573, Lot 425 DP 1171573 and Lot 426 DP1171573, JE24750A-r1(rev)	GeoEnviro Consultancy Pty Ltd	5 April 2024
Remediation Action Plan, Lot 98 DP 270660, Lot 424 DP 1171573, Lot 425 DP 1171573 and Lot 426 DP1171573, JE24750A-r2(rev2)	GeoEnviro Consultancy Pty Ltd	24 April 2024
Stormwater Management Strategy, Reference No. 22103-L01-D3-SWMS including Appendix B Drain Model Results	Diversi Consulting	4 April 2024

8. The Court orders that:

1. The appeal is upheld.

2. The Applicant shall pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $10,000 within 14 days of the date of this order.

3. Development Application No. 1202/2023/DA-SW for the boundary adjustment to incorporate the rear eastern portion of Lot 1 DP 122424 into Lot B DP 346530, consolidation of 6 existing lots, demolition of existing structures, tree removal, construction of roads, civil and bulk earthworks, associated works and subdivision to create 21 Torrens title lots, on the land as described at [2] of this judgment, as amended, is determined by grant of consent, subject to the conditions set out in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 28 June 2024