Raj & Jai 1 Pty Ltd v Blacktown City Council

[2024] NSWLEC 1043

Land and Environment Court

New South Wales

Medium Neutral Citation:

Raj & Jai 1 Pty Ltd v Blacktown City Council [2024] NSWLEC 1043

Hearing dates:

Conciliation Conference on 13 November 2023

Date of orders:

09 February 2024

Decision date:

09 February 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA-22-00348, as amended, for the demolition of all existing structures, tree removal, Torrens title subdivision of land into 15 lots over 2 stages, construction of 10 townhouses with strata subdivision, construction of public roads, landscaping and associated site works on land legally described as Lot 1, Lot 2 and Lot 3 in DP 1447 and Lot 21 in DP 1246798 and known as 134 Cranbourne Street, Riverstone NSW 2765 and Lot 6 in DP 1258818 also known as Grandeur Parade, Riverstone, NSW 2765, is determined by the grant of development consent, subject to the conditions at Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.46, 4.47, 8.7, 8.10, 8.11, 8.14

Land and Environment Court Act 1979, ss 17, 34

Water Management Act 2000, s 91

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.7, 6.65, Ch 9, ss 9.1, 9.3, 9.4, 9.5

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Precincts - Central River City) 2021, ss 3.2, 3.26, Appendix 7, ss 2.5, 2.6, 2.6A, 4.3, 5.9, 6.1, 6.4, 6.5, Sch 1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

State Environmental Planning Policy Amendment (Water Catchments) 2022

Category:

Principal judgment

Parties:

Raj & Jai 1 Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/329456

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA-22-00348) (Development Application). The Development Application, as lodged, sought consent for the demolition of existing structures, tree removal, subdivision of land into sixteen lots comprising fifteen Torrens title lots and one super lot with construction of 10 townhouses with strata subdivision, construction of public roads, landscaping and associated works, on land identified as Lot 1, 2 and 3 in Deposited Plan 1447 and Lot 21 in Deposited Plan 1246798, known as 134 Cranbourne Street, Riverstone, NSW.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application was lodged with the respondent on 24 March 2022.

4. The development the subject of the Development Application is integrated development within the meaning of s 4.46 of the EPA Act as concurrence is required:

1. under s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) as a transmission easement impacts the property; and

2. under s 91 of the Water Management Act 2000 (NSW) (WM Act) as the proposed development is a “controlled activity” under s 91 of the WM Act.

5. The respondent issued the applicant with a formal request for further information on 16 September 2022.

6. The applicant responded to this request on 24 and 31 October 2022.

7. On 3 November 2022, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

8. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 28 April 2023, the matter was listed for hearing on 13 and 14 November 2023.

9. On 11 October and 9 November 2023, the applicant was granted leave of the Court to formally amend the Development Application (Amended Development Application).

10. The Amended Development Application sought consent for the demolition of existing structures, tree removal, Torrens title subdivision of land into 15 lots over 2 stages comprising 14 Torrens title lots and 1 super lot with construction of 10 townhouses with strata subdivision, construction of public roads, landscaping and associated works on land identified as Lots 1, 2 and 3 in Deposited Plan 1447, Lot 21 in Deposited Plan 1246798, and Lot 6 in Deposited Plan 1258818, known as 134 Cranbourne Street and Grandeur Parade, Riverstone, NSW (Site).

11. Prior to the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conciliation conference on 13 November 2023, following which the hearing was vacated. I presided over the conciliation conference.

12. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement. The signed agreement was not filed in its final form until 6 February 2024.

13. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional considerations

14. 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 for the reasons that follow.

Owner’s consent

15. The applicant is the registered proprietor of Lots 1, 2 and 3 in Deposited Plan 1447 and Lot 21 in Deposited Plan 1246798 and provided consent to the Development Application when it was lodged with the respondent.

16. The applicant is also the registered proprietor of Lot 6 in Deposited Plan 1258818 and provided consent to the inclusion of Lot 6 in the Development Application by way of letter dated 27 April 2023. This letter forms part of the Amended Development Application.

Water Management Act 2000

17. Pursuant to s 91(2) of the WM Act, “a controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land”.

18. The Site is bounded by First Ponds Creek, therefore falling within the definition of “waterfront land” under the WM Act.

19. The respondent referred the Development Application, as lodged, to the Department of Planning and Environment – Water (DPE) for the purposes of ss 4.46 and 4.47 of the EPA Act and s 91(2) of the WM Act.

20. On 27 January 2023, DPE issued general terms of approval (GTAs) in relation to the Development Application.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. For the purposes of s 2.48(1)(b) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP), the development the subject of the Development Application is proposed to be carried out within or immediately adjacent to an easement for electricity purposes.

22. Pursuant to s 2.48(2) of the TISEPP, a consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out (being TransGrid in this case), inviting comments about potential safety risks, and take into consideration any response to the notice that is received. The Development Application was consequently referred to TransGrid pursuant to s 2.48 of the TISEPP.

23. On 13 February 2023, TransGrid provided its consent to the Development Application, subject to conditions. TransGrid’s response is incorporated into the conditions of consent (see Condition 2.10 of the Agreed Conditions).

State Environmental Planning Policy (Resilience and Hazards) 2021

24. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated;

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

25. The Development Application, as lodged, contained a Site Contamination Investigation Report prepared by Geotesta dated 3 June 2023 (Contamination Report) which concluded that the site (as it was identified in the Development Application) was considered suitable for the proposed land use for residential development.

26. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

27. Having regard to the Contamination Report, including its consideration of the local area, I am satisfied that the requirements of s 4.6 of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 - Hawkesbury-Nepean River

28. Chapter 9 of the Biodiversity State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) (Hawkesbury-Nepean River) applies to the proposed development. This is because:

1. Although Ch 9 of the Biodiversity SEPP was repealed on 21 November 2022 through the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP), s 6.65 of the Biodiversity SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP. The Development Application was lodged on 24 March 2022, being prior to the commencement of the Water Catchments Amendment SEPP. As the Development Application has not yet been determined, Ch 9 of the Biodiversity SEPP continues to apply to the Development Application.

2. The proposed development the subject of the Amended Development Application is located in the Blacktown local government area (s 9.1 of the Biodiversity SEPP).

29. Section 9.3 of the Biodiversity SEPP requires the consent authority to take into consideration the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP in determining a development application on land to which the Chapter applies.

30. The parties agree that the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP have been considered in the following documents:

1. Statement of Environmental Effects prepared by The Bathla Group, dated September 2023;

2. Flood Assessment prepared by Orion Consulting, dated 29 September 2022;

3. Engineering plans prepared by Orion Consulting, dated 27 October 2023;

4. Aboricultural Impact Assessment Statement prepared by Hugh Millington, dated 10 June 2023;

5. Aboriginal Archaeological Due Diligence Assessment prepared by Dominic Steele Consulting Archaeology, dated 4 May 2021;

6. Site Contamination Investigation Report prepared by Geotesta, dated 3 June 2021; and

7. Geotechnical Site Investigation Report prepared by Geotesta, dated 3 June 2021.

31. In determining the Amended Development Application, and having regard to the documents listed above, I am satisfied that the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP have been considered for the purposes of s 9.3.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

32. In compliance with the relevant requirements under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Development Application was accompanied by BASIX Certificate No. 1259590M dated 17 November 2021.

State Environmental Planning Policy (Precincts – Central River City) 2021

33. The Site is zoned R2 Low Density Residential under the Alex Avenue and Riverstone Precinct Plan (Precinct Plan) contained in Appendix 7 of the State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City Precincts SEPP). The Site is also identified as having an additional permitted land use of “multi dwelling housing” under s 2.5 and Sch 1 of the Precinct Plan. Accordingly, the development the subject of the Amended Development Application is permitted with consent under the Precinct Plan.

34. I have had regard to the R2 zone objectives which are extracted below:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

•  To support the well being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

35. The parties agree that the Amended Development Application is consistent with the objectives of the R2 zone.

36. The Development Application was notified between 17 March 2022 and 31 March 2022. No submissions were received in response to the notification of the proposal.

37. Pursuant to s 2.6 of the Precinct Plan, subdivision works are permissible with consent.

38. Pursuant to s 2.6A of the Precinct Plan, demolition works are permissible with consent.

39. The Site is not shown as having dwelling density controls on the relevant Residential Density Map, nor having a floor space ratio control on the relevant Floor Space Ratio Map of the Precinct Plan. Therefore, the Site is not subject to any minimum lot size or floor space ratio control in the Precinct Plan.

40. In accordance with the definition set out in s 3.2 of the Central River Precincts SEPP, part of the Site is mapped as “flood prone and major creeks land” on the North West Growth Centre Development Control Map. Pursuant to s 3.26 of the Central River Precincts SEPP, consent is not to be granted to the carrying out of development on land so mapped unless the matters in s 3.26(2) are taken into consideration.

41. In determining the Amended Development Application, I have considered the matters set out in s 3.26(2) of the Central River Precincts SEPP, including the fact that:

1. The Site Regrading Plan Stage 1 and Stage 2, being Plan No. 003, prepared by Orion Consulting dated 27 October 2023 and the Flood Impact Assessment prepared by Orion Consulting dated 29 September 2022 and the corresponding TUFLOW modelling based on 100 Year Average Recurrence Interval (ARI) (Flood Assessment) which form part of the Amended Development Application, demonstrate that the proposed development will result in no change to the existing flooding characteristics or conditions in First Ponds Creek adjacent to the Site and will not adversely affect flood behaviour resulting in detrimental increases in the potential flood affection of other development or properties.

2. The flow distributions and velocities have been assessed and the proposed stormwater network is designed to convey the 5 or 20 year ARI HGL. Level to the temporary OSD and ultimately towards existing Basin (see amended engineering plans prepared by Orion Consulting dated 27 October 2023). The Amended Development Application proposes development that sits above the mapped 100 Year (1% Annual Exceedance Probability (AEP)) water surface level and provides no impact to the flooding characteristics within the First Ponds Creek.

3. The developable land is proposed to be above the 1% AEP to enable safe occupation of the flood prone land.

4. The Amended Development Application includes temporary sediment and erosion controls (see Sediment & Erosion Control Plan prepared by Orion Consulting, dated 27 October 2023) to ensure no detrimental effect on the floodplain environment. The ultimate development will drain to the existing Basin.

5. The Amended Development Application proposes developable land above the 1% AEP to ensure there is no unreasonable social or economic cost as a consequence of flooding.

6. The Amended Development Application is compatible with flow conveyance of the floodway having regard to the modelling undertaken by the applicant and assessed by the respondent.

7. The Amended Development Application includes cut and fill as shown on the amended engineering plans. There will be no adverse impact on the values identified in s 3.26(2)(h)(i)-(v).

42. Pursuant to s 4.3 of the Precinct Plan, a maximum height of 9m applies to the Site. The parties agree that the Amended Development Application complies with this standard.

43. Pursuant to s 5.9 of the Precinct Plan, prescribed trees or other vegetation must not be removed without development consent or a permit granted by the Council. The Amended Development Application proposes to remove nine trees on the Site. The parties agree that the Amended Development Application only seeks consent to remove trees on the Site and no trees are proposed to be removed from any adjoining land (see Conditions 1.3.2(a) and 8.9.1 of the Agreed Conditions). The parties agree that the Site is not identified as being within a native vegetation retention area or an existing native vegetation area as shown on the relevant Native Vegetation Protection Map for the purposes of ss 6.4 and 6.5 of the Precinct Plan.

44. The parties further agree that the Amended Development Application provides landscaping embellishing work, including in the form of street trees, which will improve and enhance the Site more than its current existing state and proposed landscaping which will positively contribute to the cohesiveness and visual appreciation of the area whilst providing relief from the built form and softening the impact of the development.

45. Pursuant to s 6.1 of the Precinct Plan, a consent authority must not grant development consent to development 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.

46. The parties agree that the development the subject of the Amended Development Application will be connected to all essential services as shown on the following documents and subject to the Agreed Conditions:

1. Survey Plan prepared by SDG Pty Ltd dated 14 August 2023;

2. Potable Water and Sewer Plans prepared by QALCHECK dated 3 October 2023;

3. Electrical Services Plans (undated but located in tab 16 in Exhibit CZ-2); and

4. Engineering Plan Stage 1 and Stage 2 prepared by Orion Consulting dated 27 October 2023.

47. Having regard to the above documents and Agreed Conditions, I am satisfied that the public utility infrastructure essential for the proposed development the subject of the Amended Development Application is available or adequate arrangements have been made to make that infrastructure available when required in accordance with s 6.1 of the Precinct Plan.

Conclusion

48. 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.

49. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

50. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA-22-00348, as amended, for the demolition of all existing structures, tree removal, Torrens title subdivision of land into 15 lots over 2 stages, construction of 10 townhouses with strata subdivision, construction of public roads, landscaping and associated site works on land legally described as Lot 1, Lot 2 and Lot 3 in DP 1447 and Lot 21 in DP 1246798 and known as 134 Cranbourne Street, Riverstone NSW 2765 and Lot 6 in DP 1258818 known as Grandeur Parade, Riverstone, NSW 2765, is determined by the grant of development consent, subject to the conditions at Annexure A.

N Targett

Acting Commissioner of the Court

Annexure A

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Decision last updated: 09 February 2024