Provincial Investments (NSW) Pty Ltd v Blacktown City Council

[2024] NSWLEC 1734

Land and Environment Court

New South Wales

Medium Neutral Citation:

Provincial Investments (NSW) Pty Ltd v Blacktown City Council [2024] NSWLEC 1734

Hearing dates:

Conciliation conference on 4 November 2024

Date of orders:

15 November 2024

Decision date:

15 November 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA-23-00676 for subdivision of three lots into six lots including demolition of existing structures, tree removal, construction of roads and associated drainage and earthworks on land described as 249-271 Railway Terrace, Schofields NSW 2762 (Lots 3 and 4 in Deposited Plan 1268701 and Lot 5 in Deposited Plan 26987), as amended, is determined by the grant of consent, subject to the conditions set out at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – subdivision – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Precincts—Central River City) 2021, Appendix 7, ss 2.3, 2.6, 4.1AB, 4.1AC, 5.9, 5.10, Pt 4

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.119

Texts Cited:

Blacktown City Council, Community Engagement Strategy and Community Participation Plan, 2022/24

Category:

Principal judgment

Parties:

Provincial Investments (NSW) Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Urban Legal (Applicant)
Bartier Perry (Respondent)

File Number(s):

2023/459338

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Blacktown City Council, of development application DA-23-00676. This application seeks consent for the subdivision of three lots into six lots including demolition of existing structures, tree removal, construction of roads and associated drainage and earthworks at Lots 3 and 4 in DP 1268701 and Lot 5 in DP 26987, known as 249-271 Railway Terrace, Schofields.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. Following an earlier terminated conciliation conference, a hearing was set down for 4 November 2024. However, prior to this date, the parties indicated to the Court that they had further conciliated and resolved the issues in contention. Subsequently, the Court arranged a further conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 November 2024. I presided over the conciliation conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to fully address the Council’s contentions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified in accordance with the Blacktown City Council Community Engagement Strategy and Community Participation Plan 2022-2024 from 22 September to 6 October 2023. No submissions were received.

8. The land falls under Appendix 7 - Alex Avenue and Riverstone Precinct Plan (the Precinct Plan) within the State Environmental Planning Policy (Precincts – Central River City) 2021.

9. Pursuant to s 2.3 of the Precinct Plan, the subject site is zoned R3 medium Density Residential. To the extent that they are relevant, the parties submit, and I accept that the proposed development is consistent with the objectives of this zone.

10. Subdivision is permitted with consent pursuant to s 2.6 of the Precinct Plan.

11. Although the proposed development does not include any construction, it is the current intention to use the site for residential development in the future. Accordingly, the minimum lot size controls set out in Pt 4 of the Precinct Plan do not apply, however the parties agree that the proposed subdivision does not prohibit future compliance with the relevant controls at ss 4.1AB and 4.1AC.

12. Pursuant to s 5.9 of the Precinct Plan, development consent is requested through this application to remove 45 trees, which the parties agree is acceptable.

13. The site is not identified as a heritage item, nor located within a heritage conservation area pursuant to s 5.10 of the Precinct Plan.

14. From the parties’ submission and the information contained in the Statement of Environmental Effects by Premise Australia dated 19 October 2023 (SEE), and the civil engineering plans by Lucas Consulting Engineers Pty Ltd dated 29 July 2024 (civil engineering plans), I accept that the necessary public utility infrastructure can be made available to the site when required.

15. Pursuant to s 2.98 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), as the site is located adjacent to a railway corridor, the development application was referred to Transport for NSW (TFNSW). A response from TFNSW was provided on 26 September 2023 with no objections.

16. Again, although the proposed development does not include any of the uses listed at s 2.100(1) of the Transport and Infrastructure SEPP, from the parties’ submission and the letter from Soundscape Acoustic Consultants dated 30 July 2024, I accept that the proposed subdivision will not prevent the site from meeting the provisions of this section regarding the impact of rail noise or vibration on non-rail development.

17. The site has a frontage to Railway Terrace, which is a classified Regional Road and subsequently, s 2.119 of the Transport and Infrastructure SEPP applies to the development. Accordingly, the parties submit and, from the amended subdivision plans, I accept that the layout provides access from roads other than Railway Terrace, and that the safe, efficient ongoing operation of Railway Terrace will not be affected by the development. Future applications for construction on the subdivided lots will include consideration of traffic noise impacts and vehicle emissions (s 2.119(2)(c)).

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. On the basis of the Stage 1 Preliminary and Stage 2 Detailed Site Investigation dated 8 November 2022, Remedial Action Plan dated 9 November 2022, and the agreed conditions of consent, the parties submit and I accept, that following the necessary remediation, the site can be made suitable for the intended use.

19. The site is located within the Hawkesbury-Nepean Catchment and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the site. From the parties’ submission, the assessment contained in the SEE, and the civil engineering plans, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

Conclusion

20. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

21. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

1. The respondent, Blacktown City Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environment Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-23-00676 to rely on the following amended plans and documents:

1. Site Analysis Documentation, including:

1. Site Analysis Plan, prepared by Nordon Jago Architects, undated, reference no. PR.40;

2. Earthworks Cut Fill Plan, prepared by Lucas Consulting Engineers Pty Limited, dated 29 July 2024, Revision E;

3. High Level Catchment Plan, prepared by Lucas Consulting Engineers Pty Limited, dated 29 July 2024, Revision E;

4. Proposed Subdivision Plans, prepared by Chadwick Cheng Consulting Surveyors, dated 23 July 2024;

5. Site Analysis Plan, prepared by Nordon Jago Architects, undated, reference no. PR.01;

6. Site Analysis Plan, prepared by Nordon Jago Architects, undated, reference no. PR.02;

7. Building Envelope Sections, prepared by Nordon Jago Architects, undated, reference no. PR.07;

8. Concept Layout Plan, prepared by Nordon Jago Architects, undated, reference no. PR.23; and

9. Streetscape, Facades and Spaces Plan, prepared by Nordon Jago Architects, undated, reference no. PR.27.

2. Civil Plans prepared by Lucas Consulting Engineers Pty Limited dated 29 July 2024, Revision E, including:

1. General Notes and Drawing List, Drawing No. DA01;

2. Overall Subdivision Plan, Drawing No. DA02;

3. Detailed Site Plan, Drawing No. DA03;

4. Permanent OSD Basin Plan, Drawing No. DA04;

5. Temporary Turning Head Etails, Drawing No. DA05;

6. Typical Road Sections, Drawing No. DA06;

7. Longsections Roads 1 to 3, Drawing No. DA07;

8. Longsections Roads 4 & 5, Drawing No. DA08;

9. Longsections Pelican Road & Railway Terrace, Drawing No. DA09;

10. Road No.1 Cross-Sections Ch.15.0 to Ch.135, Drawing No. DA10;

11. Road No.2 Cross-Sections Ch.15.0 to Ch.150, Drawing No. DA11;

12. Road No.2 Cross-Sections Ch.165 to Ch.300, Drawing No. DA12;

13. Road No.3 Cross-Sections Ch.15.0 to Ch.135, Drawing No. DA13;

14. Road No.4 Cross-Sections Ch.15.0 to Ch.150, Drawing No. DA14;

15. Road No.4 Cross-Sections Ch.165 to Ch.240, Drawing No. DA15;

16. Road No.5 Cross-Sections Ch.0 to Ch.135, Drawing No. DA16;

17. Road No.5 Cross-Sections Ch.150 to Ch.240, Drawing No. DA17;

18. Railway Terrace Cross-Sections Ch.-30 to Ch.75, Drawing No. DA18;

19. Railway Terrace Cross-Sections Ch.-80.4 to Ch.45, Drawing No. DA19;

20. Pelican Road Cross-Sections Ch.-80.4 to Ch.45, Drawing No. DA20;

21. Pelican Road Cross-Sections Ch.60 to Ch.194.77, Drawing No. DA21;

22. Stormwater Pit Details, Drawing No. DA22;

23. Sediment and Erosion Control Plan, Drawing No. DA23;

24. Earthworks Cut Fill Plan, Drawing No. DA24;

25. Drainage Longsections Lines 1-4 & Line 6, Drawing No. DA25;

26. Drainage Longsections Line 7 to Line 18, Drawing No. DA26;

27. Drainage Longsections Line 19 to Line 27, Drawing No. DA27;

28. Drainage Calculations – Sheet 1 of 5, Drawing No. DA28;

29. Drainage Calculations – Sheet 2 of 5, Drawing No. DA29;

30. Drainage Calculations – Sheet 3 of 5, Drawing No. DA30;

31. Drainage Calculations – Sheet 4 of 5, Drawing No. DA31;

32. Drainage Calculations – Sheet 5 of 5, Drawing No. DA32;

33. Catchment Plan, Drawing No. DA33;

34. High Level Catchment Plan, Drawing No. DA34;

35. Line Marking and Sign Posting Plan, Drawing No. DA35; and

36. Pit Schedules, Drawing No. DA36.

3. Letter from Soundscape Acoustic Consultants to Blacktown City Council regarding Acoustic Concerns, dated 30 July 2024; and

4. Arboricultural Impact Assessment, prepared by Arbor Express, dated 3 October 2023.

2. The amended development application was filed with the Court on 1 November 2024.

23. The Court orders:

1. The appeal is upheld.

2. Development Application No DA-23-00676 for subdivision of three lots into six lots including demolition of existing structures, tree removal, construction of roads and associated drainage and earthworks on land described as 249-271 Railway Terrace, Schofields NSW 2762 (Lots 3 and 4 in Deposited Plan 1268701 and Lot 5 in Deposited Plan 26987), as amended, is determined by the grant of consent, subject to the conditions set out at Annexure A.

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 15 November 2024