Schell Custodian Pty Ltd as Trustee of Schell Family Superannuation Fund v Penrith City Council

[2023] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schell Custodian Pty Ltd as Trustee of Schell Family Superannuation Fund V Penrith City Council [2023] NSWLEC 1051

Hearing dates:

Conciliation conference on 30 and 31 January 2023

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Development Application No. DA21/0855, as amended, for the construction of an attic-style detached dual occupancy dwelling and strata title subdivision on land legally described as Lot 7 in DP 21745, known as 62 Warwick Street, Penrith, NSW, 2750, is determined by the grant of Development Consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Dual Occupancy – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34, 34 AA
Penrith Local Environmental Plan 2010, cll 5.10, 7.1,7.4, 7.6, 7.7, 7.30
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Schell Custodian Pty Ltd as Trustee of Schell Family Superannuation Fund (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
D Loether (Solicitor) (Applicant)
N Hammond (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Penrith City Council (Respondent)

File Number(s):

2022/284526

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) by Schell Custodian Pty Ltd as Trustee of Schell Family Superannuation Fund (the Applicant) against the actual refusal of Development Application No. DA21/0855 lodged with Penrith City Council (the Respondent) in November 2021.

2. The Development Application (DA) seeks Development Consent for the construction of an attic-style detached dual occupancy dwelling and strata title subdivision. The subject land is Lot 7 in DP 21745, also known as 62 Warwick Street, Penrith, NSW 2750 (The Site).

3. The Court arranged a conciliation conference between the parties pursuant to s 34 and s 34 AA of the of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference was held on 30 and 31 January 2023.

4. At the conciliation conference, the parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the DA subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court to the agreement of the parties. This included addressing concerns raised in submissions to the Respondent by nearby property owners regarding the development.

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

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Penrith Local Environmental Plan 2010 (PLEP 2010), the subject site is in Zone R2 Low Density Residential. Development for the purposes of dual occupancy (detached) is permissible within the zone. The parties agree that the proposed development, as amended, is consistent with the objectives of the zone as it reflects features and qualities of traditional detached dwelling houses in garden settings, enhances the character and identify of the area and ensures that a high level of residential amenity is achieved.

2. The proposed development does not contravene a development standard in the PLEP 2010, nor in any other applicable environmental planning instrument.

3. The requirements of cl 5.10 of PLEP 2010, that require the consent authority to consider the effect of the proposed development on the heritage significance of a Heritage Item or Heritage Conservation Area, has been adequately considered. The Site is located in the Warwick Street Heritage Conservation Area. The applicant provided an updated Heritage Impact Assessment (HIA) prepared by Rappoport Pty Ltd, dated February 2022. This report was further amended in response to matters raised by the Respondent. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

4. Clause 7.1 of PLEP 2010, which requires that earthworks do not have a detrimental impact on the surrounding land, has been considered. The parties agree that the proposed earthworks are minor and will not have a detrimental impact.

5. The parties have given due consideration to cll 7.4 and 7.6 of PLEP 2010, which requires that the principles of sustainable development and impacts on salinity, have been adequately assessed.

6. The requirements of cl 7.7 of PLEP 2010, that require the consent authority to be satisfied that certain services will be met, has been adequately considered and satisfied. The parties agree that the proposed development will provide for appropriate servicing and have included conditions in the Development Consent forming Annexure A that ensure the required outcomes.

7. Clause 7.30 of PLEP 2010, which requires that mitigation of the urban heat island effect is a major consideration for the development. Significant trees, including Tree 17, will be retained and additional trees are required to be planted to mitigate the urban heat island effect. The increased green canopy and ground cover will retain water in the landscape. The proposed development incorporates light, earthy tones in the schedule of finishes and appropriate conditions are imposed to reduce heat reflectivity and minimise heat impacts.

8. The DA was advertised and notified between 6 December 2021 and 31 January 2022. The concerns raised by adjoining property owners have been considered. The agreed outcomes include a requirement to plant additional trees in the north-east corner of the Site and a condition reducing the reflectivity of roofing materials.

9. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

10. The parties have considered, and are satisfied, that the applicable requirements under State Environmental Planning Policy (Biodiversity and Conservation) 2021 have been met. These include relevant considerations to the Hawkesbury Nepean Catchment. Particular consideration was given to vegetation on the Site, specifically, the retention of a large tree on the boundary.

11. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Council records indicate that the Site has been used for residential purposes for a significant period of time with no identified prior land uses. The parties consider that the Site poses little or no risk of contamination, and the land is considered suitable for the residential land use as outlined in the Statement of Environmental Effects, Nov 2021, HDC Planning (at p 15). The parties agree that the Site can be is suitable for residential development consistent with the Resilience and Hazards SEPP.

9. 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’ agreement.

10. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

11. The Court Orders that:

1. The appeal is upheld.

2. Development Application No. DA21/0855, as amended, for the construction of an attic-style detached dual occupancy dwelling and strata title subdivision on land legally described as Lot 7 in DP 21745, known as at 62 Warwick Street, Penrith, NSW, 2750, is determined by the grant of Development Consent, subject to the conditions at Annexure A.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (293812, pdf)

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Decision last updated: 08 February 2023