Penrith Lakes Development Corporation Ltd v Penrith City Council

[2015] NSWLEC 1329

Land and Environment Court

New South Wales

Medium Neutral Citation:	Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 1329
Hearing dates:	22, 23, 24, 25 June 2015
Date of orders:	11 August 2015
Decision date:	11 August 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is dismissed. 2. DA14/2097 for the subdivision of proposed Lot 4 to create 138 lots, the construction of roads and ancillary engineering works such as filling, retaining walls and drainage works at Castlereagh Road Penrith is refused. 3. The exhibits are returned with the exception of exhibit 12.
Catchwords:	DEVELOPMENT APPLICATION: subdivision of proposed Lot 4 to create 138 lots, each with a minimum area of 2 hectares, the construction of roads and ancillary engineering works such as filling, retaining walls and drainage works as part of the Penrith Lakes Scheme – whether permissible - flood planning levels - inadequate water supply – contamination - impact on nearby heritage items - inadequate master planning – acoustic issues
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interim Development Order No 93 State Environmental Planning Policy (Penrith Lakes Scheme) 1989
Cases Cited:	Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209
Category:	Principal judgment
Parties:	Penrith Lakes Development Corporation Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Mr R Lancaster SC with Mr M Staunton Mr D Miller SC with Mr J Hutton Solicitors: King & Wood Mallesons (Applicant) Sparke Helmore (Respondent)
File Number(s):	10486 of 2014
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Penrith City Council of Development Application No. DA14/2097 for the subdivision of proposed Lot 4 (the site) to create 138 lots, each with a minimum area of 2 hectares, the construction of roads and ancillary engineering works such as filling, retaining walls and drainage works at Castlereagh Road, Penrith. The site forms part of the Penrith Lakes Scheme (PLS).

2. Proposed Lot 4 was created with the approval of Development Application DA14/0151 that provided for the consolidation of 211 lots to create 23 super lots, including Lot 4.

3. The council maintained that the application must be refused because the subdivision is prohibited.

4. If the subdivision is not prohibited, the subdivision ought be refused because

• flood planning levels have not been determined,

• the subdivision is premature given the long-term projected population,

• there is inadequate water supply to service the subdivision,

• insufficient detail has been provided on contamination,

• insufficient detail has been provided on the potential impact on nearby heritage items,

• inadequate master planning has been undertaken to address future transport infrastructure, foreshore setbacks, local traffic management, and

• future acoustic impacts.

5. During the hearing the applicant amended the application to seek only the approval of the subdivision layout and road construction and intersection locations. Further into the hearing, the application was further amended to delete the road construction and intersections. The application then involved essentially only a “paper subdivision” with no works of any kind to be carried out, if approval was granted.

6. This had the effect of making some of the evidence less relevant, particularly road design, acoustic impacts, intersection location and design, evacuation and some town planning evidence as no houses, roads and intersections could be built and as such no cars or people could use the subdivision for the erection of a dwelling. Of the other contentions, water supply, the 1 in 100 year flood level, heritage impacts and contamination were addressed by additional conditions or further information.

7. The remaining contentions related to the question of permissibility and whether there was a need for the proper master planning of the site.

The site

8. Proposed Lot 4 has a total site area of approximately 340 ha and is irregular in shape. The site is currently partly used for extraction of sand and gravel although parts are being prepared for its anticipated future urban use. There are two heritage items located within the development site, The Poplars and McCarthy's Cemetery but they do not form part of the development.

9. The site is situated within the boundaries of the PLS which is 1,935 ha and is located on the floodplain of the Nepean River. Sand, gravel and rock have been quarried from the area since the 19th century. In the late 1960’s a plan was devised to turn the quarries into a series of recreational lakes once the sand and gravel resources were exhausted. The construction of the lakes system has been ongoing since the early 1980’s.

10. The PLS contains a series of recreational lakes as well as the Sydney International Regatta Centre, which was used during the Sydney Olympics and which is the main competition rowing facility in New South Wales. In addition to the public recreation benefits, the PLS is designed to act as a flood control system for the Nepean River when it is in flood.

Relevant planning controls

11. The primary environmental planning instrument which controls development of the site is State Environmental Planning Policy (Penrith Lakes Scheme) 1989 (SEPP 1989). SEPP 1989 does not "zone" the site and does not contain a minimum allotment size.

12. The Aims, objectives of SEPP 1989 are

2 Aims, objectives etc

(1) The aims and objectives of this Policy are to permit the implementation of the Penrith Lakes Scheme.

(2) Without limiting the generality of subclause (1), the particular aims of this Policy are:

(a) to provide a development control process establishing environmental and technical matters which must be taken into account in implementing the Penrith Lakes Scheme in order to protect the environment,

(b) to identify and protect items of the environmental heritage,

(c) to identify land which may be rezoned for urban purposes, and

(d) to permit interim development in order to prevent the sterilization of land to which this Policy applies during implementation of the Penrith Lakes Scheme.

13. The Definition in cl 5 provides:

Penrith Lakes Scheme means the scheme described in Schedule 1.

Schedule 1 Penrith Lakes Scheme

(Clause 5)

The Penrith Lakes Scheme is the creation of a regional recreational lake system as shown on the structure plan for the benefit of the public as a result of:

(a) the staged optimum extraction of sand and gravel reserves,

(b) the staged rehabilitation, reconstruction and landscaping of the land, and

(c) the staged formation of a series of interconnected lakes,

and includes the identification of land for possible future urban purposes as a result of the work referred to in paragraphs (a) and (b)

14. Clause 4 of the SEPP provides:

In the event of an inconsistency between this Policy and any other environmental planning instrument (whether made before, on or after the day on which this Policy is   made), this Policy shall prevail to the extent of the inconsistency.

15. Clause 7 of SEPP 1989 provides:

A person shall not carry out development on land to which this Policy applies except development authorised by or under this Policy.

16. Clauses 8, 9 and 10 are relevant and set out the types of development that are authorised by SEPP 1989, either with or without development consent.

17. The site is also subject to the provisions of Interim Development Order No. 93 (IDO 93). IDO 93 zones the site Rural 1(a)(2) and contains a minimum allotment size of 2 ha.

Is the subdivision permissible?

The council submissions

18. Mr Miller SC submits that the development is not permissible under cll 8, 9 or 10. First, the development is not development "for the purposes of implementing the Penrith Lakes Scheme" within cl 8(1) of SEPP 1989. Clause 8(1) of SEPP 1989 provides that "[d]evelopment for the purposes of implementing the PLS may, with development consent, be carried out on land to which this Policy applies". Sub-clause (2) then provides that the consent authority shall grant consent "to development to which this clause applies unless...". The words "development to which this clause applies" plainly refer back to ""[d]evelopment for the purposes of implementing the Penrith Lakes Scheme". Clause 8(1) therefore operates as a limit on the type of development that may be authorised under cl 8 generally. That is confirmed by the overriding or general statement of purpose in cl 2(1) (being "to permit the implementation of the Penrith Lakes Scheme").

19. As defined in Sch 1 of SEPP 1989, the PLS involves "the creation of a regional recreational lake system ... for the benefit of the public" and the "identification of land for possible future urban purposes" (emphasis added). The word "identification" in the definition of PLS should be given its ordinary meaning of "recognising or establishing something as being a particular person or thing": see Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456 at 480E, applying the Macquarie Dictionary definition; see also Cunliffe v Darkinjung Local Aboriginal Land Council (GD) [2010] NSWADTAP 77 at [19].

20. The development is not for the purposes of "the creation of a regional recreational lake system ...for the benefit of the public". It does not create a regional recreational lake system. The issue is therefore whether it comes within the PLS by reason of being "identification of land for possible future urban purposes".

21. The development includes the subdivision of land and prior to the amendments sought by the applicant; the construction of associated roads, drainage and landscaping works. It goes well beyond "identification" of land. The word "identification" in cl 8(1) should be given its ordinary meaning of "recognising or establishing something as being a particular person or thing" (see par 19). The limited nature of "identification" in this context is reinforced by the word "possible" in "possible future urban purposes". The PLS ends at the point in time when a "possible" future urban purpose is identified - any development going beyond such a purpose, and particularly any development which involves commitment to, for instance, a particular road layout, is development that will need to be authorised under a new SEPP as part of the next stage of the development of the PLS.

22. Mr Miller submits that the limited nature of "identification" is important as it relates to the overarching purpose of SEPP 1989, being to permit the implementation of the PLS (cl 2). That scheme was carefully defined in Sch 1 to be limited to the creation of a regional lakes system and the "identification" of land for future urban purposes. It must have been contemplated that if development going beyond the terms of the PLS was sought to be carried out, a new SEPP would be necessary (or, at least, the existing SEPP would need to be substantially amended). A new SEPP (or substantial amendments to the existing SEPP) will very likely involve public exhibition and participation. It will give State planning authorities and members of the public input into how the PLS is to be developed over the next stage in its life.

23. The development application goes beyond the implementation of the PLS as defined in SEPP 1989. It would set in train development for future urban purposes (particularly by reason of the construction of road and drainage networks were to proceed) in circumstances where such development should await the preparation of a new or amended SEPP, under which it can be dealt with in a coordinated and comprehensive manner.

24. Mr Chambers, the applicant’s town planner, addresses cl 8(1) and whether the proposed development is for the purposes of the "identification of land for possible future urban purposes" and states that "the proposed 2 ha subdivision is suitable for land identified in the Penrith Lakes Scheme for future urban development" (at [2.1.18]).

25. Assuming, for present purposes only, that that is the case, it does not address council's principal objection, which is that the proposed development, particularly because of the construction of associated roads, drainage and landscaping works goes beyond merely "identifying" land for "possible" future urban purposes. This was an approach mistakenly made by Mr Chambers in his evidence on the unamended scheme.

26. Clause 8(2) of SEPP 1989 provides that the consent authority "must" grant consent to development unless it holds certain opinions. Clause 8(2) is not really directed to whether the development is permissible: rather, it goes to whether if the development is permissible, it is one that the council (and now the Court) has discretion to refuse. Mr Miller submits that there is discretion to refuse the development under cl 8(2), and that in its exercise of that discretion the Court should refuse to grant development consent, essentially for the reasons given by the council’s town planner, Mr Cherry. These reasons include that the development is not development pending the completion of the PLS in, and the use as a public recreational system of, that part of the land within cl 9 of the SEPP.

27. Clause 9 of SEPP 1989 is headed "Interim Development” and plainly engages with cl 2(d) in the objects clause of SEPP 1989, which provides that a particular aim of the Policy is to "permit interim development in order to prevent the sterilization of land to which this Policy applies during the implementation of the Penrith Lakes Scheme." Clause 9 provides that development may be carried out without development consent "for the purpose of agriculture" (sub-cl (a)) and for "any other purpose" with development consent, provided that "the consent authority is satisfied that the carrying out of development for that purpose will not adversely affect the implementation of the Penrith Lakes Scheme..." (sub-cl (b)).

28. The critical point for present purposes is that both sub-clauses (a) and (b) are limited by the closing words of cl 9, which provide that the development must be "pending the completion of the Penrith Lakes Scheme in, and the use as a public recreational lake system of, that part of the land”.

29. The words "pending the completion of” confirm that the type of development potentially authorised by cl 9 is development of the type referred to in cl 2(d), namely, "interim development in order to prevent the sterilization of land to which this Policy applies during the implementation of the Penrith Lakes Scheme". The word "pending" should be given its ordinary dictionary meaning, being "until (something) happens or takes place" (Shorter Oxford English Dictionary). What is permitted by cl 9 is development that will last "until" the completion of the PLS in the relevant area.

30. Accordingly, on its proper construction cl 9 permits only "interim development", being development that will cease to be used and/or be removed when the PLS is completed in the part of land to which the development relates. The use of land for agriculture while awaiting its ultimate transition is one example (and which explains sub-clause 9(a)). Another example would be the erection of a temporary concert stage for the hosting of concerts, with a view to the stage being dismantled when the PLS is completed. Clause 9 sensibly enables land to be put to productive use "pending" completion of the PLS. That construction is consistent with the heading, which does not form part of the instrument but to which regard may be had (Interpretation Act 1987, ss 34 and 35).

31. In terms of cl 9, the proposed development is not interim development. It is not intended to cease to be used or to be removed once the PLS is completed in the area to which it relates and the land is committed to urban use - rather, it represents the "initial step to providing future urban development”. At page 44 of the Statement of Environmental Effects (SEE), the subdivision and road alignment components are described as being, "...initial road layouts and access points that will service the future urban area". This certainly cannot be fairly described as development "in order to prevent the sterilisation of land to which this Policy applies during the implementation of the Penrith Lakes Scheme". It is a step beyond this, and assumes almost as a present right, a power under SEPP 1989 to progress urban development by a particular layout or pattern. Unlike agriculture or a temporary concert stage, the proposed subdivision and road layout (both as to location and alignment) does not give the land any productive use while the PLS is finalised and new planning controls are put in place. Rather, it readies the land for a particular use, if and when new planning controls are put in place, but under a pre-determined subdivision layout and road pattern that may, or may not, turn out to be optimal for the number of residents and dwellings that are ultimately sought to be introduced.

32. Also, the relationship between cll 8 and 9(b) of the SEPP is relevant. Clause 8 permits, with consent, development for a limited purpose only (being "[d]evelopment for the purposes of implementing the Penrith Lakes Scheme"). By contrast, cl 9(b) permits, with consent, development for "any purpose". Unless cl 9 is construed as being limited to interim development, in the manner contended for by the council, then it will leave cl 8 with very little work to do. That provides further confirmation that cl 9 was intended to permit development in order to prevent sterilisation of land during the implementation of the PLS and the words "pending".

33. Finally, it should be noted that neither of the planning experts have considered the "interim" nature of the development authorised by cl 9, or whether the proposed development can properly be characterised as development "pending the completion of the Penrith Lakes Scheme in, and the use as a public recreational system of, that part of the land". Rather, they both go directly to considering whether the proposed development will "not adversely affect the implementation of the Penrith Lakes Scheme..." The council does not suggest that there is anything wrong with that - the question of whether the proposed development is development ""pending the completion of the Penrith Lakes Scheme" is one of construction and essentially a matter for submissions rather than expert opinion.

34. The Court could not be satisfied that the proposed development will not adversely affect the implementation of the PLS. If, contrary to the above, and the Court is against the council on the construction of the word "pending" in cl 9, then it will need to consider whether it is satisfied that the proposed development "will not adversely affect the implementation of the Penrith Lakes Scheme", since that is a further requirement for permissibility under cl 9(b).

35. This issue is one on which expert planning opinion is of assistance.

36. The Court should accept the views of Mr Cherry. Mr Cherry's view is, in essence, that the Court is in no position to form the state of satisfaction that cl 9(b) requires it to form if the development is to be permissible. It has far too little information about the proposed number of dwellings and other matters, and therefore cannot be confident that there will not be adverse impacts in terms of flooding and/or the fettering of the ability to identify land for future residential purposes.

37. Mr Chambers analysis of this issue amounts to no more than an assertion that there will be no adverse impact without candour as to matters such as the number of proposed dwellings, their proposed location, their form or type, final occupant numbers and projected car numbers (and an appreciation of whether other forms of resident transport may, or may not, be provided) it is not possible to speculate on what might be the most appropriate subdivision and road layout on a site that is accepted as potentially subject to inundation and high velocity flood waters. These considerations extend off-site as planning focus shifts from evacuating the site, and, the impacts that will be experienced regionally as future occupants seeking to evacuate pour onto roads already dealing with regional flood evacuation traffic.

18. Clause 10 permits, with consent, "development for the purposes of the construction or widening of roads". The developments is not "for the purposes" of the construction or widening of roads. The SEE by its terms makes it plain that roads are ancillary to the subdivision of land for future urban use.

The applicant’s submissions

39. Mr Lancaster SC, for the applicant, submits that the fundamental issue between the parties in relation to permissibility, under cl 8, relates to the construction and application of the word "identification" in the definition of the PLS.

40. The word "identification" is not defined in SEPP 1989. The council contends that it should be given its ordinary meaning of "recognising or establishing something as being a particular person or thing.

41. The council contends that the development which includes subdivision and originally roads, drainage and landscaping goes beyond "identification" of land for possible future urban purposes. The council in effect asserts that the development proposes the actual carrying out of urban development rather than identifying land for that possible purpose in the future.

42. It is important to note that the council did not take any objection on permissibility grounds when it approved DA 14/0151 which involved consolidation of 211 existing allotments and re-subdivision into 23 super lots nor when it entered into a s 34 agreement in proceedings No. 10488 of 2014 which approved a subdivision of lots 109 & 110 in DP 1143931. There is no logical or legal basis to distinguish the present proposal, which is also permissible.

43. While giving the word "identification" it’s ordinary meaning, that meaning must have regard to the context in which it is found. Clause 8(1) of SEPP 1989 authorises "development" for the purpose of "implementing the "Penrith Lakes Scheme".

44. Development is defined in s 4 of the EPA Act as:

development means:

(a) the use of land, and

(b) the subdivision of land, and

(c) the erection of a building, and

(d) the carrying out of a work, and

(e) the demolition of a building or work, and

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. prescribed by the regulations for the purposes of this definition."

45. Subdivision is a form of development which is not excluded from the type of development permitted under cl 8(1) of SEPP 1989. The applicant contends that "identification" means to mark or establish and that the subdivision and works mark (by title boundaries) and establish (by physical works) land for possible urban purposes in the future.

46. The word "implementing" is not defined SEPP 1989. Its ordinary meaning in the context in which it appears is "to put into effect". It is uncontroversial that the area of land affected by the development falls generally within the areas notated on the structure plan as "FUTURE URBAN AREA". It is also uncontroversial that the proposed lot size of a minimum of 2 ha is the smallest lot size currently permitted on the site. In the words of Mr Chambers, "such lot sizes represent the highest intensity of non-urban subdivision under the existing local planning controls". It is also relevant that IDO 93 contains a zone 1(d) ("Future Urban") and the minimum allotment size of land in that zone is also 2 ha. The purpose of the 1(d) zone is to identify land for possible future urban purposes.

47. Contrary to the council's position, the development does not propose any urban development but simply seeks to puts into effect the PLS by marking title boundaries in the Register and establishing - through roads, drainage and landscaping - lots of a size that are suitable for possible urban development in the future. In doing so the site is identified for possible future urban development.

48. Once cl 8(1) of SEPP 1989 is engaged, the development becomes permissible with consent. It is then only a question of whether the consent authority "shall" grant consent under cl 8(2). Even if the consent authority is not obliged to grant consent under cl8(2), it retains the discretion to do so pursuant to cl 8(1) subject to the matters contained in cl 8(3) and (4).

49. As the development does not include an extractive industry (cl 8(2)(b)) only clause 8(2) (a) is relevant.

50. For the reasons above, the Court would be satisfied that the development fully implements the PLS (cl 8(2)(a)(i)). It puts into effect the identification of land for possible future urban purposes by creating and establishing lots of an appropriate size with a road layout that can be adapted for possible future urban purposes.

51. In relation to cl 8(2)(a)(ii), the evidence of Mr Chambers is that the creation of the 138 lots with roads, drainage and landscaping are a reasonable step along the way to possible future urban use. Having regard to the aim of SEPP 1989 is "to identify land which may be rezoned for urban purposes", the proposed subdivision is particularly desirable at this time in light of the council's intentions previously expressed to limit identification of the land for future possible urban purposes by applying a 20 ha minimum lot size. Failure to pursue the subdivision to its maximum permitted density when the council has flagged a significantly lesser density, jeopardises future possible use of the site for urban purposes.

52. The applicant does not understand that there is any dispute that the development is generally in accordance with the structure plan (cl 8(2)(a)(iii)).

53. There is no separate contention by the council that the development should be refused upon consideration and application of clauses 8(3) or 8(4) of SEPP 1989.

54. Accordingly, the Court would not form the opinion referred to in cl 8(2)(a) and, on that basis, grant consent to the development as required by clause 8(2).

55. Further, or in the alternative to the earlier submissions relying on cl 8, the applicant relies upon cl 9 of SEPP 1989 to authorise the development .

56. Clause 9 authorises development for agriculture without consent and for any other purpose, with development consent, if the consent authority is satisfied that the carrying out of development for that purpose will not adversely affect the implementation of the PLS, pending the completion of the PLS in, and the use as a public recreational lake system of, that part of the land. The development plainly falls within the second limb of cl 9. The intent of cl 9 can be found in aim 2(d) of the SEPP which is:

(d) to permit interim development in order to prevent the sterilization of land to which this Policy applies during implementation of the Penrith Lakes Scheme.

57. The clear purpose of cl 9 is to enable use of land for any purpose (rather than sterilize the land from use) provided that such use does not adversely affect the implementation of the PLS. Clause 9 allows development to be carried out concurrently with and while the PLS is implemented, provided that the development does not prevent or hinder the implementation of the PLS.

58. The council submits that "interim development" is development that will cease to be used and/or be removed when the PLS is completed and the PLS is rehabilitated for recreational use and future urban purposes. The council gives as an example, a temporary concert stage however that form of development would be permissible separately under clls 11 and 11A of SEPP 1989.

The words "interim development" are not used in the text of cl 9 but only in the heading. The only other place those words are found is SEPP 1989 is in cl 2(d). There is no definition of "interim development" in SEPP 1989. The ordinary meaning of "interim" is "in or for the intervening period". Contrary to the council's submissions there is no requirement that development authorised by cl 9 be merely transient or temporary or capable of easy removal. Clause 9(a) permits agriculture without consent. There is no requirement in cl 9(a) that the agricultural use cease on completion of the scheme nor is there any such requirement in cl 9(b) which relates to other purposes. What is permitted by cl 9 is development that will not adversely affect the implementation of the PLS, pending the completion of the PLS in, and the use as a public recreational lake system of, that part of the land.

59. Mr Lancaster further submits that cl 10 of SEPP 1989 also contains a further alternate source of power with respect to the roads and drainage works proposed by the development although the applicant ultimately did not seek approval for these works.

The planning evidence

60. In relation to cl 8(2)(a)(i), Mr Chambers states that the development puts into effect the identification of land for possible future urban purposes by creating and establishing lots of an appropriate size with a road layout that can be adapted for possible future urban purposes. Mr Cherry disagrees and while his evidence addresses the unamended version of the application he states that the works constitute development and not identification of land for “possible future urban purposes”. Also, the works have no specific nexus to the prescribed scope of works in (a) and (b) of Sch 1 of SEPP 1989.

61. Clause 8(2)(a)(ii) asks whether the development will ensure the satisfactory implementation of the land for possible future urban purposes. Mr Chambers maintains that there is no adverse affectation of the implementation of the PLS. The proposal does not only not adversely affect the implementation of the PLS, but is a reasonable and responsible step in its facilitation and finalisation. Subdivision into 2 ha lots is consistent with the identification of land for possible urban purpose and the zoning under IDO 93.

62. Also, in the opinion of Mr Chambers, the proposal does not frustrate or deny the possibility of future subdivision of the land to which the application applies for urban purposes. It is entirely consistent with the land in Lot 4 being identified in the PLS for "possible future urban purposes". A hypothetical subdivision shows how consideration has been given in the design of the proposed subdivision to an indicative urban transformation once the planning controls permit that to occur.

63. Mr Chambers states that the proposal represents a sound, logical and staged approach to delivering the PLS as the land reaches final rehabilitation. This approach allows for and does not prevent, hinder or inhibit further urban design investigations, or the urban development of the site, or the future development of a neighbourhood centre and urban precincts whilst continuing to implement the PLS (as indicated in the SEE). Two-hectare lots, as proposed, provide ample flexibility for transformation into urban use when the planning controls permit that to occur.

64. Mr Cherry adopts a different approach. He states that to conclude that the development will not adversely fetter the identification of land for future urban purposes it is necessary to know what the future residential use of the land will be in terms of the appropriate locations for housing, the number of dwellings, dwelling mix, density, and residential population. The development application and supporting material is unclear in that regard. Some of the material lodged with the development application and submitted to the Court suggests that the site may be intended to be occupied by approximately 5,000 residential dwellings in the future. On the other hand, other evidence indicates that the development application provides for only 138 dwellings. In the case of the 5,000 dwellings, there is currently no information available about the size of the proposed dwellings and therefore the number of expected future occupants of the site is unclear. Without knowing the total number of future residents of the site, it is not possible to properly assess the adequacy of the proposed road network and intersections or the capacity of that road network to be used to evacuate future residents in the event of a flood.

65. The development application now seeks development consent for road corridors and road widths. By designating roads in particular locations it is possible that the ability to identify land for future residential purposes may be fettered and therefore it may adversely impact on the implementation of the PLS.

Findings

Clause 8

66. Clause 8(1) and (2) provide:

8 Development for the purposes of implementing the Penrith Lakes Scheme

(1) Development for the purposes of implementing the Penrith Lakes Scheme may, with development consent, be carried out on land to which this Policy applies.

(2) The consent authority shall grant consent to development to which this clause applies unless:

(a) the consent authority is of the opinion that the development the subject of the application:

(i) does not fully implement the Penrith Lakes Scheme on the land to which the application for development relates,

(ii) will not ensure the satisfactory implementation of the Penrith Lakes Scheme, or

(iii) is not generally in accordance with the structure plan, and

67. There are limited opportunities in SEPP 1989 for granting development consent in the PLS area under cl 8(2)(a). Clause 8(2)(a) provides consent shall be granted unless the Court is of the opinion that the development “does not fully implement the Penrith Lakes Scheme on the land to which the application for development relates” (cl 8(2)(a)(i)) or “will not ensure the satisfactory implementation of the Penrith Lakes Scheme” (cl 8(2)(a)(ii)). The PLS is defined as “the creation of a regional recreational lake system as shown on the structure plan for the benefit of the public” and “includes the identification of land for possible future urban purposes”.

68. In considering the submissions and the evidence of the town planning experts, I agree with the council that consent should not be granted under cl 8(2)(a)for a number of reasons. First, and while Mr Chambers may be correct in that the proposed 2 ha subdivision may ultimately be re-subdivided for urban purposes, I do not accept that this process is “satisfactory”. Land suitable for urban development is a scarce resource and the development of this land should not be constrained by the need for re-subdivision or the constraints placed on the land by an interim subdivision. I totally reject his evidence where he suggests that there is no difference in achieving the ultimate implementation of the PLS irrespective of whether the site remains as Lot 4 or 138 x 2 ha lots.

69. There can be no reasonable basis to support Mr Chamber’s comments. The proper planning needed to eventually accommodate around 5000 lots (according to Mr Cherry) is clearly more able to be undertaken in an efficient manner if the land is in one lot (with one owner) rather than 138 lots (with potentially 138 owners). There can be no doubt that the need for ongoing discussion and negotiation with multiple owners over the distribution of the different land uses, roads and public amenities required for urban development would only prolong, at best, the ultimate implementation of the PLS.

70. Second, I am satisfied that the development does not “fully implement the Penrith Lakes Scheme on the land to which the application for development relates” (my emphasis). The reliance by Mr Chambers on the development being an interim step in the progression to “possible future urban purposes” is inconsistent with the intent of the sub-clause. The word “fully’ is used in the sub-clause and this word must have some purpose in understanding the meaning of the sub-clause. In my view, the sub-clause does not anticipate or sanction an interim step, as suggested by Mr Chambers. “Fully implement” must mean that the development must implement the PLS as far as SEPP 1989 anticipates. SEPP 1989 does not seek to zone land but rather seeks “to permit the implementation of the Penrith Lakes Scheme”(cl 2(1)) through the investigation of the land. This is further explained in cl 2(2)(c) where the aim is “to identify land which may be rezoned for urban purposes”.

71. Third, I accept the submission of Mr Miller that, in relation to the implementation of the PLS, the development is not for the purposes of "the creation of a regional recreational lake system ...for the benefit of the public" as it does not create a regional recreational lake system.

72. Fourth, I am also not satisfied that the development is not "identification of land for possible future urban purposes". Even putting aside that the development is inconsistent with the aim in cl 2(2)(c), “urban purposes” is not defined in SEPP 1989 and in general planning terms “urban purposes” would not generally include a subdivision into 2 ha lots. Urban purposes would generally include residential development of various densities and infrastructure that is ancillary, such as open space, neighbourhood shops and schools depending on the size of the urban area. Urban purposes could also include commercial or industrial land uses. A 2 ha subdivision would generally be regarded as rural or rural/residential. This conclusion is also supported by the standards for road design, drainage and on –site disposal required by the council in the unamended application.

73. Fifth, the approval of a 138 x 2 ha lots subdivision also pre-determines and constrains the ultimate implementation of the PLS. While the central spine layout for the proposed subdivision would appear to be suitable for the proposed subdivision, it does not follow that it is appropriate for urban purposes. Accepting that the road could be re-subdivided, if needed, it is an unnecessary and inefficient step in the production of future urban land. The general approach of re-subdividing land is to make use of existing features such as existing roads and subdivision boundaries so as to minimise disruption to property owners. This does not always provide the most efficient or effective subdivision and where the opportunity exists to avoid this situation, the opportunity should be taken.

74. Sixth, and even though a hypothetical subdivision was produced to indicate that the proposed subdivision could be further subdivided to reflect a higher density (SEE, p18,19) using the road layout of the proposed subdivision, I am not satisfied that it provides sufficient justification for the approval of the proposed development. The scale of the plan of the hypothetical subdivision made it difficult to fully consider however it is more than likely that any subdivision (absent the approval of the proposed development) and based on implementation of the PLS, would take a different form. This form is also more than likely to provide a more efficient design that would include a properly considered hierarchy of roads. In my view, the proposed central spine road does not easily lend itself to conversion, if the site is further subdivided for the implementation of the PLS.

75. Also, given the potential population of the site, the hypothetical subdivision does not address the range of goods and services needed to accommodate such a population such as open space, commercial, employment or retail facilities.

76. Seventh, no criticism can be reasonably made of the council for the approval of DA 14/0151 which involved consolidation of 211 existing allotments and re-subdivision into 23 super lots. Contrary to the submission, I accept that there is a logical and sound planning reason for the approvals. The simple reason being that a better planning outcome (and the consequent implementation of the PLS) is more likely to be achieved through the larger amalgamated lots rather than a large number of small individual lots.

77. Eighth, I am not also prepared to give the weight to IDO 93 as suggested by Mr Chambers. The minimum 2 ha lot size in IDO 93 is only one matter that needs to be taken into account in the consideration of the application. It is also not the only relevant planning instrument as SEPP 1989 post-dates IDO 93 and raises a new range of important strategic matters that are not addressed or were even contemplated at the time of IDO 93.

67. Ninth, cl 8(2)(a(iii) provides that consent shall be granted unless the Court is of the opinion that the development “is not generally in accordance with the structure plan”. The structure plan is not overly helpful because, in its current form ,it provides only the words “FUTURE URBAN AREA” in the area of the site.

68. Given the limited direction the structure plan provides and the proposed development, the only conclusion that could be reached is that the development “is not generally in accordance with the structure plan” as it proposes rural or rural/residential rather than urban development

Clause 9

80. Clause 9 provides:

9 Interim development

Development may be carried out on any part of the land to which this Policy applies:

(a) for the purpose of agriculture, without the necessity for development consent, or

(b) for any other purpose, with development consent, if the consent authority is satisfied that the carrying out of development for that purpose will not adversely affect the implementation of the Penrith Lakes Scheme,

pending the completion of the Penrith Lakes Scheme in, and the use as a public recreational lake system of, that part of the land.

81. I accept the submissions of Mr Miller on cl 9(b) that the proposed development is not interim development. The development does not prevent the sterilization of the land by allowing an interim use of the land “pending the completion of the Penrith Lakes Scheme” but rather provides for the ultimate use through an interim step in the process: a step not recognised in SEPP 1989. The subdivision will not to cease to be used or be removed pending the completion of the PLS, rather (and in the approach of Mr Chambers) is part of the ultimate implementation of the PLS.

82. The development represents the initial step to providing future urban development rather than an interim use, as required by cl 9 based on the evidence of Mr Chambers. I accept that it is not necessary for the words "interim development" to be used only in the heading and not in the text of cl 9 to understand the intent of the clause. As submitted by Mr Miller, to read cl 9 in any other way other than being limited to interim development, would leave cl 8 with very little work to do.

83. For the reasons in the preceding paragraphs, I have also concluded that that development will” adversely affect the implementation of the Penrith Lakes Scheme”.

Clause 10

84. Clause 10 states:

10 Development for the purposes of roads

(1) Development for the purposes of the construction or widening of roads may, with development consent, be carried out on land to which this Policy applies.

(2) Notwithstanding subclause (1), Roads and Maritime Service may, without the necessity for development consent, carry out development:

(a) for the purpose of constructing a main road to replace the Castlereagh Road, generally in conformity with the proposed route shown on the structure plan, or

(b) for the purpose of widening the Castlereagh Road.

(3) The consent authority shall, in determining an application to carry out development for the purposes of the construction or widening of roads, take into consideration the implementation of the Penrith Lakes Scheme and the structure plan.

85. While cl 10 permits, with consent, "development for the purposes of the construction or widening of roads", I accept the submission of Mr Miller that the developments is not "for the purposes" of the construction or widening of roads” but for the subdivision of the land. In any event, roads and drainage works originally proposed by the development are now not sought.

86. For the reasons in the preceding paragraphs, I have concluded that the development cannot be approved pursuant to cll 8(2)(a), 9(b) and 10 although I will briefly address the issue of master planning.

Master planning

87. The need for the master planning of the site was seen by Mr Cherry as an important step in the implementation of the PLS. As I understand, Mr Chambers agreed but felt that the implementation of the PLS would not be impeded by the proposed subdivision. For reasons set out earlier, I strongly disagree with Mr Chambers on this point.

88. To satisfy the aims of SEPP 1989, there seems no other way other than some form of master planning exercise (or whatever name is used). SEPP 1989 appropriately calls for ”a development control process establishing environmental and technical matters which must be taken into account in implementing the Penrith Lakes Scheme in order to protect the environment,” (cl 2(2)(a)). This process is to “identify and protect items of the environmental heritage” (cl 2(2)(b)) and “to identify land which may be rezoned for urban purposes” (cl 2(2)(c)). It is unclear to me how these aims could be achieved without some formal planning process. It clearly cannot be achieved through an interim subdivision of the land.

89. As submitted by Mr Miller, the Court has the opportunity, or even obligation, to consider the ultimate use of the land in deciding whether to approve a subdivision application. The Court of Appeal in Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 stated (at [9]

I have already said that it would be quite wrong to require the council or the board to deal with a subdivision application as if the land were and would always remain vacant land. The propriety of looking to the present and to the prospective state of the buildings and their uses is, I think, affirmed by such cases as Emmott v Ku-ring-gai Municipal Council (1958) 3 LGRA 177; Fiorino v Ryde Municipal Council (1958) 3 LGRA 266 and Dunn v Sutherland Shire Council (1959) 4 LGRA 178..

90. In this case, I can find no valid planning reason to support the application. The application, for the reasons in the preceding paragraphs does not implement the PLS and the amendments over the course of the hearing reduced the subdivision from a potentially fully functional 2 ha subdivision to essentially a “paper subdivision” with no physical works and consequentially no dwellings and no occupation. Even if the lots were created as a “paper subdivision” the issues raised by the council in relation to flooding, evacuation, bridge design, lake foreshore access, access to Castlereagh Road and certain lot orientation remained unanswered. I can see no reason to approve a subdivision that cannot be implemented and has no unidentified purpose. Mr Chambers could not shed any light on the reason for the subdivision beyond his evidence that it did not affect the implementation of the PLS.

91. If I am incorrect in finding that the proposed subdivision is prohibited, I can comfortably conclude that the application should be rejected on its merits. Even though the subdivision satisfies the minimum lot size under IDO 93, this in itself, is not sufficient warrant the approval of the application because of its clear potential for urban development as set out in SEPP 1989. The “public interest” (s 79C(1)(e)) is a well used but rarely properly used consideration for a development application. It is more regularly used in a private interest context rather than a public interest context. In this case, it would be harder to find a better example of where the wider public interest is best served by the rejection of the application so that land for the future growth of the Sydney region is produced in an efficient and environmentally sensitive manner.

92. Similarly, it would be harder to find a better example that is inconsistent with the aim in s 5(a)(ii) of the EPA Act that seeks “the promotion and co-ordination of the orderly and economic use and development of land”. Under any assessment, the convoluted interim stage proposed in this application could not be said to satisfy this aim.

Orders

93. The orders of the Court are:

1. The appeal is dismissed.

2. DA14/2097 for the subdivision of proposed Lot 4 to create 138 lots, the construction of roads and ancillary engineering works such as filling, retaining walls and drainage works at Castlereagh Road Penrith is refused.

3. The exhibits are returned with the exception of exhibit 12.

__________________

G T Brown

Acting Senior Commissioner

Decision last updated: 11 August 2015