Statewide Planning Pty Ltd v Penrith City Council

[2024] NSWLEC 1080

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Statewide Planning Pty Ltd v Penrith City Council [2024] NSWLEC 1080

Hearing dates:

Conciliation conference on 27 February 2024

Date of orders:

27 February 2024

Decision date:

27 February 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development Application DA22/0801 for Torrens title subdivision of 11 lots, consisting of 10 residential allotments and one substation allotment, associated earthworks, drainage and retaining walls at 27 Abacus Parade, Werrington, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.4, 7.7; Pts 6, 7

Biodiversity Conservation Regulation 2017, cl 7.3

Environmental Planning and Assessment Act 1979, ss 4.15, 4.47, 8.15(3); Pt 4, Div 4

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 39

Penrith Local Environmental Plan 2010, cll 2.1, 2.3, 2.6, 4.1, 5.10, 5.21, 7.1, 7.3, 7.6, 7.7, 7.8, 7.30

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.65, 9.4, 9.5; Chs 6-12

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.99, 2.100, 2.118, 2.119, 2.121, 2.122; Ch 2; Schs 2, 3

State Environmental Planning Policy Amendment (Water Catchments) 2022

Water Management Act 2000, s 91

Category:

Principal judgment

Parties:

Statewide Planning Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
T To (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/59166

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following Penrith City Council’s deemed refusal of development application DA22/0801 (DA), as amended, for a Torrens title subdivision to create 10 residential lots and 1 substation lot with associated earthworks, drainage infrastructure, retaining walls, landscape embellishment works at 27 Abacus Parade, Werrington, legally identified as Lot 130 in DP 121519 (site).

2. The DA was made by David Smedley of The Trustee for Statewide Planning Trust (see Tab 1 of Class 1 Application) at the instruction, and with the consent, of the owners of the site (see the signed owners’ consent at Tab 20 of the Class 1 Application) on 14 September 2022.

3. The DA was notified in accordance with the Council’s Community Participation Plan between 26 September 2022 and 24 October 2022. No submissions were received during this period.

4. On 15 February 2023, the Council determined the DA by way of refusal (see Tab 2 of the Class 1 Application).

5. On 21 February 2023, the applicant filed these Class 1 proceedings against the Council’s refusal.

6. The DA was amended with leave of the Court on 27 September 2023 (see Notice of Motion filed on 25 September 2023 and Affidavit in Support sworn by Matt Sonter on 25 September 2023 and Exhibit MS-1 to that affidavit) (First Amendment).

7. Following joint expert conferencing, the applicant filed a Notice of Motion seeking leave to further amend the DA (see Notice of Motion filed on 16 February 2024 and Affidavit in Support sworn by Matt Sonter on 16 February 2023 and Exhibit MS-2 to that affidavit). The Motion was returnable on the first day of the hearing.

8. As it happened, the hearing did not proceed as the parties sought and were granted an adjournment to allow the matter to be reallocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act).

9. The conciliation took place before me on 27 February 2024 and during that process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The parties filed a s34 agreement with supporting documents which included the changes to the development reflected in Exhibit MS-2 to the Notice of Motion (Final Amendment). The amendments to the DA are accepted to be responsive to the contentions and the concerns raised by the objectors and result in a better environmental outcome from the development.

10. The parties’ decision involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

11. 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.

12. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders were addressed in the parties’ joint jurisdictional submission annexed to their written agreement. After a consideration of those submissions, I am satisfied, on the evidence before me, that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following matters.

Integrated development

13. The development is integrated development under Div 4.8 of Pt 4 of the EPA Act as it requires a controlled activity approval under s 91 of the Water Management Act 2000 (WMA) and a bushfire safety authority under s 100B of the Rural Fires Act 1997 (RFA).

Water Management Act 2000

14. A mapped watercourse (second order stream) runs within 40m from the site. As the development will occur within 40m of the watercourse, it is being carried out on waterfront land within the meaning of the WMA. Accordingly, the development requires a ‘controlled activity’ approval under s 91 of the WMA (see Tab 7 of Council’s bundle). The relevant approval authority is the Department of Planning and Environment – Water (DPE Water).

15. On 27 March 2023, following the refusal of the DA on 15 February 2023, DPE Water provided General Terms of Approval (GTAs), stamped with a watermark of “not issued - preliminary only”.

16. In subsequent email correspondence between a representative of DPE Water and the Council’s solicitors (Tab 13 of s34 agreement bundle), it was noted that the Department had intended to provide GTAs, but had refrained from issuing formal GTAs as Council had refused the application before this could be done.

17. Following the First Amendment in September 2023, the amended DA was re-notified to DPE Water (see Tab 14 of s34 agreement bundle). No response or updated concurrence has been received since this time. However, I have power to determine the appeal without concurrence under s 39(2) and s 39(6) of the LEC Act.

Rural Fires Act 1997

18. The site is identified as bushfire prone land, requiring a s100B Bushfire Safety Authority from the NSW Rural Fire Service (RFS) pursuant to the RFA.

19. By letter dated 22 November 2022 the RFS issued General Terms of Approval (GTAs) (Tab 16 of Council’s Bundle).

20. The RFS’ GTAs are included in the annexures of the proposed conditions of consent such that the consent to the DA will be consistent with the GTAs issued by the RFS (s 4.47(3) of the EPA Act).

Biodiversity Conservation Act 2016 (BC Act) and Biodiversity Conservation Regulation 2017 (BC Regs)

21. Part 7 of the BC Act regulates the biodiversity assessment requirements for various types of development approvals under the EPA Act. Related to this assessment is the Biodiversity Offset Scheme, which provides a framework for offsetting unavoidable impacts on biodiversity prescribed under Pt 6 of the BC Act as well as the BC Regs:

1. Section 7.4 of the BC Act provides that a proposed development is considered to exceed the biodiversity offsets threshold if it is development “of a kind that the regulations declare to exceed the threshold”.

2. Clause 7.3 of the BC Regs provides that the “clearing of any land identified within the Biodiversity Values Map” exceeds the biodiversity offsets threshold.

3. Subsection 7.2(1) of the BC Act further prescribes that any development or activity which exceeds the biodiversity offsets scheme threshold shall be deemed to be “likely to significantly affect threatened species”. Under subs 7.7(2), this would then trigger the need for a development application to be accompanied by a biodiversity development assessment report (BDAR).

22. Portions of the site were previously identified on the Biodiversity Values Map however the Minister determined to amend the Map and remove those previously identified areas from the Map. A copy of the determination is at Tab 12 of the Class 1 Application.

23. Despite this, the areas of land immediately beyond the northern and eastern lot boundaries of the site are identified within the Biodiversity Values Map. Respectively, these areas are the Penrith Rail Corridor (and associated trees found along its border of the site) as well as vegetated areas within the adjoining riparian corridor (see current extract of Biodiversity Values Map at Tab 3A of Council’s Bundle).

24. As a result of the amendments made in the First and Final Amendments, the DA has:

1. On its northern boundary - increased the setback of its northern retaining wall by between 1.6m and 4.2m, resulting in a maximum encroachment of 9.5% within the TPZs of Biodiversity Values-mapped trees (see encroachment diagram at Tab 2 of Exhibit MS-2); and

2. On its eastern boundary – introduced a retaining wall (becoming a gradual batter) adjacent to riparian corridor (see sections at Tabs 1 and 3 of s34 agreement bundle).

25. The impact to trees has been assessed by the applicant’s Arboricultural expert (see Tab 11 of s34 agreement bundle), concluding (at p 7, par 6.2) that the impacts are considered to be negligible.

26. Additionally, the applicant has undertaken a biodiversity site inspection (see Attachment E of Joint Arboricultural/Ecology Report), which confirms that:

1. The site is predominately vegetated with invasive, non-native species;

2. There were no threatened ecological communities, threatened flora or fauna species identified during the field survey; and

3. The development is not likely to significantly affect any threatened biodiversity.

27. Accordingly, the DA as amended does not involve significant impact or clearing of trees within land mapped Biodiversity Values, nor is it deemed likely to significantly affect threatened species. The parties submit and I accept that the proposed development does not trigger the biodiversity offsets scheme or require the preparation of a BDAR.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

28. Pursuant to s 4.6 of the RH SEPP, a consent authority must be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so.

29. In relation to the satisfaction of requirements under the RH SEPP, the applicant provided a prepared a Detailed Site Contamination Investigation (Tab 9 of the Class 1 Application) which concludes (at p 19) that the land is suitable for the proposed use.

30. In light of the above, the parties submit and I accept that the land is not contaminated for the purposes of s 4.6 of the RH SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

31. The DA was lodged under Chs 6-12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), prior to their repeal on 2 March 2023.

32. On 21 November 2022, the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments SEPP) came into force and transferred the provisions in Chs 6-12 of the BC SEPP to other areas within that SEPP. Section 6.65 of the BC SEPP however provides that, where a DA was lodged but not finally determined before the commencement of the Water Catchments SEPP, the former provisions of the BC SEPP apply. Accordingly, the former provisions (i.e. prior to 21 November 2022) of the BC SEPP apply.

33. The site is within the Hawksbury Nepean River catchment and is subject to the general planning considerations in s 9.4 of the BC SEPP. The parties submit and I accept that the proposed DA (as amended) is:

1. consistent with the aim of Ch 9 and provides a considered approach to the potential impacts of future development on the site which is response to its regional context (s 9.4(a));

2. consistent with the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy (s 9.4(b).

3. the proposal is suitable for the site and there are no other reasonable suitable alternatives (s 9.4(c)); and

4. appropriately manages environmental impacts (s 9.4(d)).

34. The parties are satisfied and I accept that the existing planning controls and therefore the proposed development is consistent with the strategies outlined in s 9.5 of the BC SEPP where applicable.

State Environmental Planning Policy (Transport and Infrastructure) 2021

35. The DA engages the provisions of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP).

36. Chapter 2 of the T&I SEPP provides a series of planning controls and mandatory considerations, aimed at facilitating the effective delivery and management of public infrastructure throughout NSW.

37. Sections 2.98 and 2.99 applies to development likely to have an adverse effect on rail safety or involving certain works adjacent to rail infrastructure.

38. The site shares its northern boundary with the Penrith Rail Corridor, and is therefore subject to an assessment under these provisions. Referral responses were received from TfNSW on 13 December 2022. This response confirms that TfNSW has granted concurrence subject to conditions set out in their letter. These conditions include:

1. prior to the commencement of any works, the applicant shall provide certification from a qualified geotechnical and structure al engineer confirming that the proposed works are to have no negative impact on the rail corridor; and

2. prior to the issuing of a construction certificate, detail of the design of the retaining wall on the boundary are to be submitted to TfNSW for review, comment and written endorsement.

39. Copies of this correspondence and the matters the subject of the conditions have been included in the proposed conditions of consent.

40. Section 2.100 (Impact of rail noise or vibration on non-rail development) applies to development. Section 2.100 provides that a building for residential use on land in or adjacent to a rail corridor and that the consent authority considers is likely to be adversely affected by rail noise or vibration. Subclauses (2) and (3) read as follows:

(2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Director-General for the purposes of this clause and published in the Gazette.

(3) If the development is for the purposes of a building for residential use, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LA_eq levels are not exceeded:

(a) in any bedroom in the building—35 dB(A) at any time between 10.00 pm and 7.00 am

(b) anywhere else in the building (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

41. In compliance with s 2.100, the applicant has provided an Acoustic Report (Tab 9 of s34 agreement bundle) which concludes that that the proposed development will comply with the relevant controls under subss (2) and (3) on the basis of the construction methods proposed, and subject to the uptake of certain recommendations which are incorporated into the conditions of consent. The Acoustic Report has been assessed by the parties’ experts in joint conferencing, who agree that the report is satisfactory to resolve all acoustic matters raised in Council’s contentions.

42. The site is not located on, nor does not it have a direct frontage to, a classified road and as a result it is not necessary to consider the provisions of ss 2.118-2.119 of the T&I SEPP that requires a consent authority to consider the impact of arterial roads on buildings used for residential purposes.

43. Section 2.121 (Excavation in or immediately adjacent to corridors) applies to development which proposes excavation of ground to a depth of at least 3m below ground level that is within the mapped corridor of major motorways or road projects (as identified in Sch 2 of the T&I SEPP). The site is not within proximity of any of the listed road corridors or projects identified at s 2.121(1)(a)-(v) or in Sch 2.

44. Section 2.122 (Traffic-generating development) identifies a number of types of development that require concurrence where development is identified as ‘traffic-generating development’ to be referred to TfNSW for comment.

45. The DA does not provide direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access is within 90m of the connection. Furthermore, the DA proposes a total of 10 residential lots, and is therefore not of a relevant size or capacity for the purposes of Sch 3.

Penrith Local Environmental Plan 2010

Clause 2.1 (Land use zones)

46. The land is identified on the LEP Land Zoning Map as being R1 – General Residential (see Tab 3A of the Council’s Bundle).

Clause 2.3 (Zone objectives and Land Use Table)

47. Clause 2.3 requires the Court to have regard to the zone objectives. Each of the proposed uses are permissible in the relevant zone in which they are to be carried out and each of those uses are on their face consistent with the objectives of each of the relevant zones.

Clause 2.6 (Subdivision – consent requirements)

48. The proposed works, ‘subdivision’ is permissible on the subject land, noting that all residential lots are proposed within the area mapped R1.

Clause 4.1 (Minimum subdivision lot size)

49. The subject site is not identified on the Lot Size Map for the purposes of subcl 4.1(3).

Clause 5.10 (Heritage)

50. The site is not identified as a heritage item nor is it located within a heritage conservation area. The nearest local heritage item to the land (Item No. 860 – “Kingswood Milestone”) is along the southern verge of the Great Western Highway, approximately 400m to south of the land. The proposed development does not have any adverse impact on the item given the spatial separation.

Clause 5.21 (Flooding)

51. A detailed investigation on the flooding behaviour has been undertaken in the vicinity of the proposed development. Using the established TUFLOW model for Orth College Werrington Creek FPRMS&P (2021), the study determined the flood behaviour for the 1% AEP design flood. The primary flood characteristics reported for the design events considered include depths, levels and velocities.

52. The impact of the proposed development was assessed and was found to be negligible in the floodplain and does not impact any existing or future dwellings which the precinct (Tab 5 of s34 agreement bundle). The matters required to be considered under cl 5.21 have been considered and raise no issue.

Clause 7.1 (Earthworks)

53. The proposed development proposes earthworks which is a matter for consideration under cl 7.1. In support of the proposed works, the applicant has prepared the following documents:

1. Geotechnical Report (Tab 10 of Exhibit MS-1);

2. Detailed Site Investigation (Tab 9 of the Class 1 Application)

3. Environmental and Waste Management Plan (Tab 10 of the Class 1 Application)

54. The conditions of consent require compliance with these documents.

Clause 7.3 (Development on natural resources sensitive land)

55. The subject site is not identified as natural resources sensitive land.

Clause 7.6 (Salinity)

56. The applicant’s Geotechnical Report (Tab 10 of s34 agreement bundle) notes (at section 5.0) that the site is identified as moderate to high salinity potential on the 2002 Map of Salinity Potential in Western Sydney. The salinity of the subject site has been previously assessed under a previous DA (DA11/0546), which approved Torrens title subdivision for x116 lots, with the subject site approved as a residue lot.

57. This DA approved a salinity assessment (Tab 15 of s34 agreement bundle), which includes the land within its assessment area (see p 7). This Report notes the identification of the land on the 2002 Map of Salinity Potential in Western Sydney, concluding (at section 6.0) that the salinity levels on site range from non-saline (from topsoil to more than 1m) to moderately saline at more than 1m soil layer depth.

58. The proposed conditions of consent require the testing of existing fill on site, and where found to be unsuitable, for it to be exported from site (Conditions 16, 17 and 41).

59. In light of the previous assessments undertaken, and the incorporated conditions of consent, parties are agreed that proposed development and the impact of the proposed development on salinity have been considered, and that appropriate measures are in place to avoid or reduce any undesirable effects that may result from the impacts.

Clause 7.7 (Servicing)

60. The proposed development will be serviced by sewer, water, power and telecommunications and conditions have been imposed accordingly for the required clearance certificates.

Clause 7.8 (Active street frontages)

61. The subject site is not identified on the Active Street Frontages Map.

Clause 7.30 (Urban heat)

62. The proposed development incorporates planning and design measures to reduce the urban heat island effect through the retention of all trees existing on the land, as well as the planting of additional street trees along the street frontage (see Tab 19 of Class 1 Application).

Notation and orders

63. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

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

65. The Court notes:

1. That Penrith City Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA22/0801 in accordance with the documents listed below:

No.	Document	Date
1.	Amended Site Plan and Sections prepared by Tony Owens Architects	26 February 2024
2.	Amended Plan of Subdivision prepared by Ramsay Surveyors	24 February 2024
3.	Amended Civil Plans (Rev G) prepared by SGC Engineering	26 February 2024
4.	Amended Landscape Plans prepared by Geoscapes	16 February 2024
5.	Updated Flooding Report prepared by SGC Engineering	23 February 2024
6.	Supplementary Flooding Letter (PLEP Clause 5.21) prepared by SGC Engineering	23 February 2024
7.	Addendum Letter to Flood Study Report (TUFLOW Modelling) prepared by SGC Engineering	26 February 2024
8.	Further Addendum Letter to Flood Study Report (Freeboard) prepared by SGC Engineering	26 February 2024
9.	Amended Acoustic Report prepared by Acouras Consultants	5 February 2024
10.	Geotechnical Report prepared by Down to Earth Consulting	9 February 2024
11.	Addendum Arboricultural Report prepared by Treehaven Enviroscapes	13 February 2024
12.	Biodiversity Site Inspection Report prepared Ecological Australia	1 December 2023

2. The amended DA was filed with the Court on 27 February 2024.

66. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development Application DA22/0801 for Torrens title subdivision of 11 lots, consisting of 10 residential allotments and one substation allotment, associated earthworks, drainage and retaining walls at 27 Abacus Parade, Werrington, is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

………………..

S Dixon

Senior Commissioner of the Court

Annexure A (Final) (344673, pdf)

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Amendments

03 April 2024 - Correction to typographical error at [1].

Decision last updated: 03 April 2024