The Trustee for HSEM Holdings Trust v Penrith City Council

[2025] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for HSEM Holdings Trust v Penrith City Council [2025] NSWLEC 1666

Hearing dates:

Conciliation Conference 7 August 2025

Date of orders:

12 September 2025

Decision date:

12 September 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

Proceedings 2024/391087

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA24/0493, as amended, for the use of a palisade fence at 1 Water Street Wallacia, being Lot 4 in Deposited Plan 718232 is determined by the grant of consent subject to the conditions at Annexure A.

(3) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application in the agreed amount of $2,000 within 28 days under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

Proceedings 2024/391061

The Court orders that:

(1) The appeal is upheld.

(2) The respondent is directed pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) to issue a Building Information Certificate with respect to the fence depicted in yellow in the Fencing Plan at Annexure B on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, within seven days of the date of these orders.

Proceedings 2024/390933

The Court orders that:

(1) The appeal is upheld.

(2) Development Control Order dated 26 September 2024 concerning the land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street Wallacia is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW) to provide for the following:

(i) The fence shown in red in the Fencing Plan at Annexure B is to be dismantled and removed within eight weeks from the date of these orders.

(ii) Photographic evidence of the removal of the fence is to be provided to the respondent within nine weeks of the date of these orders.

Catchwords:

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

BUILDING INFORMATION CERTIFICATE - conciliation conference – agreement between the parties – orders

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.10, 8.11, 8.18, 8.25, 9.34, Sch 5, Pt 1

Fisheries Management Act 1994 (NSW)

Land and Environment Court Act 1979 (NSW), ss 17, 34

Water Management Act 2000 (NSW)

Environmental Planning and Assessment Regulation 2021, s 38

Penrith Local Environmental Plan 2010, cl 5.21, 7.1, 7.3, 7.4, 7.5, 7.6, 7.7, 7.18

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, pt 6.2

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

Texts Cited:

Penrith Development Control Plan 2014

Community Engagement Strategy and Community Participation Plan 2022

Category:

Principal judgment

Parties:

The Trustee for HSEM Holdings Trust (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
R Coffey (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/391087
2024/391061
2024/390933

Publication restriction:

Nil

Judgment

COMMISSIONER:

1. This judgment deals with the following three appeals:

1. Proceedings 2024/391087 (DA Proceedings) – an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA24/0493 (Development Application) seeking consent for use of an existing 1.8m black palisade fence (Palisade Fence), erection and use of a 1.8m high chain mesh fence suspended across Jerrys Creek (Proposed Chain Mesh Fence), and landscaping, on land identified as Lot 4 in Deposited Plan 718232, known as 1 Water Street Wallacia (Subject Land).

2. Proceedings 2024/391061 (BIC Proceedings) – an appeal pursuant to s 8.25(1) of the EPA Act against the refusal of Building Information Certificate (BIC) Application BC24/0055 (BIC Application), being an application by the applicant in the BIC Proceedings to regularise the Palisade Fence on the Subject Land.

3. Proceedings 2024/390933 (DCO Proceedings) – an appeal pursuant to s 8.18 of the EPA Act against the Development Control Order (Order) issued by the respondent under s 9.34 and Pt 1 of Sch 5 of the EPA Act to the applicant dated 26 September 2024, requiring the applicant to relevantly remove the Palisade Fence and a (previously existing) chain-wire style fence through Jerrys Creek, located on the Subject Land.

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 (NSW) (LEC Act).

Background

3. The Subject Land is zoned C2 Environmental Conservation and C3 Environmental Management under the Penrith Local Environmental Plan 2010 (PLEP). The Subject Land is owned by the applicant.

4. Between January and March 2023:

1. the Palisade Fence was erected adjacent to the eastern boundary (with setbacks ranging from 0.24m to 1m) and on a portion of the northern boundary; and

2. a chain-wire style fence was erected through Jerrys Creek, although it is noted in the DCO that as at 25 September 2024, this fence had been removed from the Subject Land,

3. (collectively, Unauthorised Fencing).

5. It was the respondent’s contention that the Unauthorised Fencing:

1. required development consent in circumstances where no consent was sought or obtained;

2. presented visual amenity impacts to adjoining residents and the public;

3. is not consistent with the rural and environmentally zoned residential properties in the area; and

4. insofar as it comprised fencing through Jerrys Creek, would impede the movement of native and aquatic fauna and become blocked with debris overtime, which may restrict the flow of water and result in flooding.

6. Following various correspondence between the parties, and proposed and actual development control orders being issued, the applicant lodged the:

1. Development Application the subject of the DA Proceedings on 26 June 2024; and

2. BIC Application the subject of the BIC Proceedings on 2 July 2024.

7. On 9 July 2024, the respondent issued the applicant with a Notice of Intention to Serve Development Control Order.

8. On 16 September 2024, the Development Application was determined by way of refusal.

9. On 20 September 2024, the BIC Application was determined by way of refusal.

10. On 26 September 2024, the respondent issued the Order the subject of the DCO Proceedings on the applicant.

11. On 21 October 2024, the applicant commenced the DCO Proceedings, being within the time period specified in s 8.18(3) of the EPA Act.

12. On 22 October 2024, the applicant commenced the:

1. DA Proceedings, being within the time period specified in s 8.10 of the EPA Act; and

2. BIC Proceedings, being within the time period specified in s 8.25(2) of the EPA Act.

13. The parties participated in a s 34 conference in respect of the three matters, which was terminated on 9 April 2025. The matters were then set down for joint hearing on 6-8 August 2025. I presided over the hearing to the extent it was commenced.

14. During the course of the hearing, the parties reached agreement as to the resolution of the three proceedings. The agreement reached is for:

1. The Development Application to be approved in an amended form, including:

1. the Proposed Chain Mesh Fence across Jerrys Creek is removed from the application;

2. part of the existing Palisade Fence along the northern and eastern most boundary of the Subject Land is to be relocated further within the boundary of the Subject Land as per the Fencing and Landscaping Plan prepared by Martens dated 7 August 2025 (Fencing Plan);

3. a vegetation management zone is to be created and maintained along the northern and eastern most boundary of the Subject Land as depicted on Landscape Plan prepared by Lindy Lean dated 30 July 2025 (Landscaping Plan) and in accordance with the Agreed Conditions (see Condition 5); and

4. the preparation and implementation of a Fauna Management Plan as per Condition 7 of the Agreed Conditions,

(collectively, the Amended Development Application).

2. A BIC to be directed to be issued in respect of only those parts of the Palisade Fence marked in yellow on the Fencing Plan.

3. The DCO to be modified so as to require the removal of the fence marked in red on the Fencing Plan within eight weeks of the Court’s orders with photographic evidence of the removal provided within nine weeks of the Court’s orders (Modified Order).

15. The parties agree that the works the subject of the Amended Development Application, in conjunction with the works required to be undertaken by the DCO and those works to be authorised by the BIC, resolve the respondent’s concerns in relation to the Unauthorised Fencing.

16. The parties provided signed s 34 agreements in all three proceedings on 7 August 2025 with an accompanying jurisdictional statement and requested the matters be listed for a s 34 conference. The Court granted this request. Following the parties addressing my queries regarding jurisdiction, judgment was reserved on 7 August and the hearing vacated.

DA Proceedings

17. To make orders in accordance with the parties’ agreement in the DA Proceedings, I must be satisfied that the decision to grant development consent is a decision 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).

18. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions for the reasons that follow.

Owners consent

19. The registered proprietor of the Subject Land provided owners’ consent to the Development Application at the time of lodgement (see Class 1 Application in the DA Proceedings, tab 2).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application as the Subject Land is located within the Hawkesbury-Nepean Catchment.

21. The parties agree that the matters set out in ss 6.6 to 6.10 of the BC SEPP have been considered. Further, the parties agree, and I accept that:

1. For the purposes of s 6.6 of the BC SEPP:

1. the effect on the quality of water entering a natural waterbody will be as close as possible to neutral; and

2. the development has negligible and satisfactory water flow impacts for a natural waterbody.

2. For the purposes of s 6.7 of the BC SEPP, the proposed development:

1. keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation;

2. will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. does not require an approval or permit under the Water Management Act 2000 or Fisheries Management Act 1994;

4. minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and

5. will not have an adverse impact on wetlands.

3. For the purposes of s 6.8 of the BC SEPP, the proposed development will not cause a release of pollutants during a flood event and will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

4. For the purposes of s 6.9 of the BC SEPP, the proposed development does not affect public access to and from natural water bodies.

5. For the purposes of s 6.10 of the BC SEPP, the proposed development will not have an adverse environmental impact on any adjacent local government area

6. For the purposes of s 6.11 of the BC SEPP, the proposed development is not a water-dependent use, being fencing for rural purposes and to provide security and the development will not cause a land use conflict.

22. The relevant requirements of Pt 6.2 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. I accept the parties’ submission that the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) regarding contamination have been considered and that the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. In determining the Amended Development Application, I have considered the matters set out in s 4.6(1) of the RH SEPP, and have had regard to the fact that there is no historic use of the land that would warrant a finding that the land upon which the existing and proposed fencing is located is contaminated.

Penrith Local Environmental Plan 2010

24. The Subject Land is zoned part C2 Environmental Conservation and C3 Environmental Management under the Penrith Local Environmental Plan 2010 (PLEP). The Amended Development Application only relates to that part of the Subject Land zoned C3 Environmental Management. The parties agree that extensive agriculture and dwelling houses are permissible with consent in the C3 zone and that the proposed fencing and landscaping is ancillary to those permissible uses. I have had regard to the C3 zoning objectives which are extracted below:

•  To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•  To provide for a limited range of development that does not have an adverse effect on those values.

•  To minimise conflict between land uses within the zone and land uses within adjoining zones.

•  To ensure development is compatible with the environmental capabilities of the land and does not unreasonably increase the demand for public services or public facilities.

•  To preserve and improve natural resources through appropriate land management practices.

25. The parties agree that the proposal is consistent with the above zoning objectives.

26. Pursuant to cl 5.21 of the PLEP regarding flood planning, the consent authority must be satisfied of the matters listed in cl 5.21(2) and consider the matters listed in cl 5.21(3) prior to granting consent. In determining the Amended Development Application, I confirm that I am satisfied of the matters listed in cl 5.21(2) and have considered the matters listed in cl 5.21(3) having regard to the Flood Assessment prepared by Martens dated July 2025 and Joint Expert Report on Flooding dated 16 July 2025.

27. Pursuant to cl 7.1 of the PLEP relating to earthworks, the consent authority must consider the matters listed in cl 7.1(3) in deciding whether to grant development consent. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 7.1(3) of the PLEP having regard to the extremely minor nature of earthworks proposed by the Amended Development Application.

28. Pursuant to cl 7.3 of the PLEP relating to development on natural resources sensitive land, the consent authority must consider the matters listed in cl 7.3(4) and be satisfied of the matters listed in cl 7.3(5) in deciding whether to grant development consent. The parties agree and I accept that the Amended Development Application:

1. does not require removal of native vegetation and has occurred on an area of the Subject Land dominated by exotic vegetation;

2. does not result in the fragmentation of remnant vegetation or restrict the passage of fauna;

3. will not have an adverse impact on a waterway nor increase the velocity of runoff entering the waterway; and

4. proposes development that is designed and located to manage and avoid any potential adverse environmental impact.

29. Pursuant to cl 7.4 of the PLEP regarding sustainable development, the parties agree and I accept that the proposal is not contrary to the principle of ecological sustainable development.

30. Pursuant to cl 7.5 of the PLEP regarding protection of scenic character and landscape values, the parties agree and I accept that the proposal will have an acceptable visual impact from the major road and public places.

31. Pursuant to cl 7.6 of the PLEP regarding salinity, the parties agree and I accept that the proposal is not likely to impact on salinity processes, nor will salinity have an impact on the proposed development.

32. Pursuant to cl 7.7 of the PLEP regarding servicing, the parties agree and I accept that the proposal will not alter the water supply or means of disposing of sewerage from the Subject Land.

33. Pursuant to cl 7.18 of the PLEP regarding Mulgoa Valley, the consent authority must be satisfied of the matters listed in cl 7.18(3) and (4) before granting consent. The parties agree and I accept that the specified matters are satisfied on the basis of the reasons provided in the agreed jurisdictional statement (see [37] and also pp 21-23 of the Statement of Environmental Effects prepared by Martens dated June 2024 (SEE)). For completeness, I note that cl 7.18(4) of the PLEP is not relevant to the proposal.

Penrith Development Control Plan 2014

34. The provisions of the Penrith Development Control Plan 2014 that are relevant to the Amended Development Application have been considered in the assessment of the proposal (see also p 24 of the SEE).

Remaining matters under s 4.15(1) of the EPA Act

35. In determining the Amended Development Application, I have taken into consideration the matters listed in subs 4.15(1)(a), (b), (c) and (e) of the EPA Act as are of relevance to the Amended Development Application.

36. For the purposes of s 4.15(1)(d) of the EPA Act, the Development Application was notified and exhibited in accordance with the respondent’s adopted Community Engagement Strategy and Community Participation Plan 2022 with no submissions received (see Delegate’s Report – Respondent’s Bundle, tab 7).

BIC Proceedings

37. To make orders in accordance with the parties’ agreement in the BIC Proceedings, I must be satisfied that the decision to make orders directing the respondent to issue a BIC in the terms proposed by the parties is a decision that the Court can make in the proper exercise of its functions. 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.

38. On hearing an appeal in connection with a BIC under s 8.25(1) of the EPA Act, pursuant to s 8.25(3), the Court may do any one or more of the following –

1. direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

2. revoke, alter or confirm a notice to supply information,

3. make any other order that it considers appropriate.

39. I am satisfied that the respondent should be directed to issue a BIC in the terms proposed by the parties on the basis that:

1. The appeal in the BIC Proceedings was accompanied by owners’ consent from the registered proprietor of the Subject Land (see Class 1 Application in the BIC Proceedings, tab 3).

2. The works the subject of the BIC proposed to be issued comprise works ancillary to an extensive agricultural and dwelling house use. Extensive agriculture and dwelling houses are permissible with consent in the C3 zone under the PLEP, being the zone in which the Subject Land is located.

3. The parties agree, and I accept, that for the purposes of s 8.25(3)(a) of the EPA Act, the fencing marked in red on the Fencing Plan that was originally included in the BIC Application should be excluded from the Building Information Certificate issued on the basis that the applicant has agreed to remove that part of the fence under the modified DCO. This will facilitate further landscaping and a vegetation management zone (for which consent is sought under the Amended Development Application).

4. I accept the parties’ submission that there is no impediment to the Court directing the respondent to partially issue the BIC on the terms proposed, having regard to the additional information provided by the applicant and the agreed resolution of the DA Proceedings and DCO Proceedings.

DCO Proceedings

40. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders modifying the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). 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.

41. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

42. It is clear that the Court has power to modify a DCO pursuant to s 8.18(4)(b) of the EPA Act.

43. I am satisfied the DCO should be modified in the manner proposed by the parties on the basis that:

1. The Modified Order is agreed by the parties to be issued pursuant to Item 3 of Pt 1 of Sch 5 of the EPA Act, being a “demolish works order”. The applicant is the owner of the Subject Land such that they are able to be issued with the Modified Order pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act.

2. The Modified Order requires removal of the part of the Palisade Fence marked red on the Fencing Plan. This fencing was erected without the required planning approval. The requirement to remove this part of the Palisade Fence therefore falls within the scope of Item 3 of Pt 1 of Sch 5 of the EPA Act and is in accordance with s 9.34 of the EPA Act.

3. The combined resolution of the DA Proceedings, BIC Proceedings and DCO Proceedings resolves the respondent’s concerns regarding the Unauthorised Fencing.

Conclusion

44. 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 DA Proceedings, BIC Proceedings and DCO Proceedings in accordance with the parties’ decision.

45. The Court notes that the respondent, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No. DA/24/0493 in accordance with the documents listed below:

1. Fencing and Landscape Plan prepared by Martens and Associates, revision C, dated 7 August 2025 and drawing No. PS05-AZ00.

2. Typical Fence Elevation prepared by Martens and Associates, revision B, dated 6 August 2025 and drawing No. PS05-AZ01.

3. Landscape Plan prepared by Lindy Lean, issue B, 30 July 2025 and drawing L01.

4. Flood Assessment prepared by Martens and Associates dated July 2025.

46. The above documents were provided to the Court on 7 August 2025.

Orders

47. Proceedings 2024/391087

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA24/0493, as amended, for the use of a palisade fence at 1 Water Street Wallacia, being Lot 4 in Deposited Plan 718232 is determined by the grant of consent subject to the conditions at Annexure A.

(3) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application in the agreed amount of $2,000 within 28 days under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

48. Proceedings 2024/391061

The Court orders that:

(1) The appeal is upheld.

(2) The respondent is directed pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) to issue a Building Information Certificate with respect to the fence depicted in yellow in the Fencing Plan at Annexure B on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, within seven days of the date of these orders.

49. Proceedings 2024/390933

The Court orders that:

(1) The appeal is upheld.

(2) Development Control Order dated 26 September 2024 concerning the land located at 1 Water Street Wallacia is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW) to provide for the following:

(i) The fence shown in red in the Fencing Plan at Annexure B is to be dismantled and removed within eight weeks from the date of these orders.

(ii) Photographic evidence of the removal of the fence is to be provided to the respondent within nine weeks of the date of these orders.

N Targett

Commissioner of the Court

Annexure A (147 KB, pdf)

Annexure B (272 KB, pdf)

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Decision last updated: 12 September 2025