Topwei One Pty Limited v Camden Council

[2025] NSWLEC 1296

Land and Environment Court

New South Wales

Medium Neutral Citation:

Topwei One Pty Limited v Camden Council [2025] NSWLEC 1296

Hearing dates:

Conciliation conference on 5 and 20 August, 10, 24 and 26 September, 8, 15 and 29 October, 12 and 26 November, 18 December 2024 and 5 February 2025

Date of orders:

5 May 2025

Decision date:

05 May 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No 2023/341/1, as amended, for Torrens title subdivision to create 1 open space lot, 2 residential lots and 3 residue lots with tree removal, demolition of structures, dam decommission, earthworks, road construction, drainage, servicing, construction of 17 multi-dwelling housing units, car parking, landscaping and associated site works at 120 Ingleburn Road, Leppington NSW 2179 (legally known as Lot 1 Deposited Plan 529937), subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – consideration of planning proposal for Leppington Town Centre – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

National Parks and Wildlife Act 1974, s 90

Roads Act 1993, s 138

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Environmental Planning and Assessment Regulation 2021, ss 38, 76

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

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

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, cl 3.26, Appendix 5, ss 2.2, 2.3, 4.1, 4.3, 5.1, 5.9, 5.10, 6.1, 6.2, 6.3

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

State Environmental Planning Policy (Sustainable Buildings) 2022, Ch 2, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.118, 2.120

Threatened Species Conservation (Replacement Certification Maps) Order (No 2) 2015

Cases Cited:

Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Texts Cited:

Camden Community Participation Plan 2021

Camden Growth Centres Precincts Development Control Plan 2024

Leppington Town Centre Review Planning Proposal 2023

Category:

Principal judgment

Parties:

Topwei One Pty Limited (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
A Kliese (Solicitor) (Applicant)
K Huxley (Solicitor) (Respondent)

Solicitors:
Urban Legal (Applicant)
Holding Redlich (Respondent)

File Number(s):

2024/186406

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA/2023/341/1 (the DA) for Torrens title subdivision to create 1 open space lot, 2 residential lots and 3 residue lots with tree removal, demolition of structures, dam decommission, earthworks, road construction, drainage, servicing, construction of 19 multi-dwelling housing units, car parking, landscaping and associated site works at 120 Ingleburn Road, Leppington NSW 2179, legally known as Lot 1 in DP 529937 (the site).

2. The DA was lodged on 20 June 2023. The proposed development consists of:

1. Subdivision to create:

1. Lot 1 (8,338m²) as a residue lot for future residential flat buildings;

2. Lot 2 (11,350m²) as a residue lot for future residential flat buildings;

3. Lot 3 (7,568m²) as a residential lot containing multi-dwelling housing;

4. Lot 4 (14,210m²) as a residue lot for future public open space;

2. Removal of all existing trees and vegetation within the development footprint;

3. Demolition of all existing structures within the development footprint;

4. Bulk earthworks, temporary sediment stockpiles and sediment basins;

5. Construction of one collector road, one local road and one internal laneway (including a pedestrian walkway) within Lot 3;

6. Construction of a multi-dwelling housing development comprising:

1. seven two storey attached dwellings on future Lot 3A; and

2. twelve two storey dwellings on future Lot 3B;

7. The subdivision of Lot 3 into Lots 3A, 3B and 3C is not included in the DA; and

8. Associated works for each dwelling, including refining earthworks, driveways, stormwater drainage, landscaping and fencing.

3. A s 34 conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 5 August 2024. The on-site view was vacated as no submissions were received, and the parties indicated that they were seeking to reach a s 34 agreement. I presided over the s 34 conciliation conference, which commenced at the Council offices.

4. The s 34 conciliation conference was adjourned a number of times before a s 34 agreement was reached between the parties on 3 February 2025.

5. A signed s 34 agreement with Annexure A was filed with the Court on 3 February 2025, with amended plans (the amended DA) and additional documents as agreed between the parties, being filed with the Court on 4 February 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

6. Between 16 August 2024 and 29 November 2024, the Applicant provided several tranches of amended material to the Respondent as part of the s 34 conciliation conference process. The parties agree that all contentions raised in the Respondent’s Statement of Facts and Contentions (the SOFAC) have been resolved by the amended and additional material provided by the Applicant during the course of the s 34 conciliation conference and agreed conditions of consent.

7. The parties advise that changes to the proposed development in the amended DA are as summarised below:

1. The number of proposed townhouses reduced from 19 to 17, accompanied by a reduction in car parking spaces from 32 to 30. The floor space ratio increased from 0.69:1 to 0.80:1, and the gross floor area increased accordingly. Corresponding reductions made to the landscaped area and deep soil zone, while the development’s solar access was improved;

2. the architectural plans revised to reflect the updated road dedication and site layout, including adjustments to built form, pedestrian pathways, and parking configuration. Block 3A reduced from 12 to 11 dwellings and Block 3B from 7 to 6, with updated floor plans, facades, balconies, and finishes. Elevations and sections updated to align with new levels and materials, and compliance diagrams revised to reflect improved solar access;

3. the civil engineering drawings amended to reflect changes in road design, site grading, and drainage strategy. This included the removal of on-site detention tanks beneath the laneway, introduction of a new swale and intersection design, and relocation of the stormwater infrastructure to better suit updated catchments and boundaries; and

4. additional detail included in the civil package to address staging, interim road access, pavement types, retaining structures, and revised stormwater modelling. Several plans updated or superseded to reflect these new arrangements, and a revised DRAINS model submitted to support the stormwater management strategy.

8. 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. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and as supplemented by an amended Jurisdictional Statement provided to the Court on 23 April 2025.

Jurisdictional Prerequisites

Owner’s Consent

11. The parties advise that Owner’s consent has been given to the Respondent for the lodgement of the DA.

The Camden Community Participation Plan 2021 (Sch 1, Div 2, s 7(1) of the EPA Act)

12. The DA was notified from 10 July 2023 to 14 August 2023 in accordance with the Camden Community Participation Plan 2021, during which time the Respondent did not receive any submissions.

Conditions

13. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

14. The parties advise that the DA was lodged as an integrated development application pursuant to s 4.46 of the EPA Act as it requires:

1. The grant of an Aboriginal heritage impact permit under s 90 of the National Parks and Wildlife Act 1974;

2. Authorisation under s 100B of the Rural Fires Act 1997 in respect of bush fire safety of subdivision of land that could lawfully be used for residential purposes; and

3. An activity approval under s 91 of the Water Management Act 2000.

National Parks and Wildlife Act 1974

15. The conditions of consent include a condition that the Applicant must comply with the general terms of approval provided by Heritage NSW.

Rural Fires Act 1997

16. The SOFAC contained a reference to the initial response from the Rural Fire Service (the RFS) requesting additional information on temporary building restrictions due to grassland hazard, temporary turning head design, internal laneway design, and slope assessment.

17. The parties advise that the conditions of consent include condition 1.1(3)(3) that the Applicant must comply with the General Terms of Approval (GTA’s) provided by the RFS.

Referral to Endeavour Energy

18. The parties advise that pursuant to s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Infrastructure SEPP) the DA was referred to the electricity supply authority for the area, being Endeavour Energy (at [32] below). On 2 December 2024, Endeavour Energy recommended the approval of the DA, subject to the imposition of conditions, which have been included at condition 1.1(3)(6) of the conditions of consent.

Referral to Transport for NSW

19. The parties advise that the DA was referred to Transport for NSW (TfNSW) for concurrence under s 2.118 of the Infrastructure SEPP (at [33] below). On 31 July 2023, TfNSW gave its concurrence with a number of recommendations.

20. The amended DA was re-referred to TfNSW by the Respondent on 29 November 2024. TfNSW provided a response on 9 December 2024, confirming it had no further comments on the amended DA.

Referral to Department of Climate Change, Energy, the Environment and Water

21. The parties advise that the Department of Climate Change, Energy, the Environment and Water (DCCEEW) has not provided general terms of approval, but has provided a response that “the Department has no objections to the DA in principle” and that additional documents will need to be submitted before a controlled activity approval can be issued (DCCEEW response dated 17 December 2024, Deferred Commencement Condition 1.0(1)(6) of the conditions of consent).

Biodiversity Conservation Act 2016

22. The parties advise that the proposed development includes removal of all existing trees and vegetation within the development footprint.

23. The site is partially mapped as biodiversity certified on the map named “South West Growth Centre—Biodiversity Certification” that was the subject of the Threatened Species Conservation (Replacement Certification Maps) Order (No 2) 2015.

24. The area that is not mapped as biodiversity certified is the area of the site mapped as “existing native vegetation area” and “native vegetation retention area” under s 6.2 of Appendix 5 to State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (the WPC SEPP).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

25. The site is mapped as being within the Hawkesbury-Nepean Catchment under the State Environmental Planning policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP). Chapter 6 (Water Catchments) of the Biodiversity SEPP applies to the DA. The parties advise that the Applicant’s Statement of Environmental Effects (SEE) considers the matters in Ch 6 (Water Catchments) of the Biodiversity SEPP.

26. In particular, the parties advise that:

1. For the purposes of s 6.6(2) of the Biodiversity SEPP the parties agree that:

1. the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial given the distance between the property and the Hawkesbury-Nepean River System, as set out in drawing number C301 in the civil set of plans prepared by SYJ Consulting dated 4 November 2024; and

2. the impact on water flow in a natural waterbody will be minimised for the reasons set out above and on page 17 of the SEE.

2. For the purposes of s 6.7(2) of the Biodiversity SEPP the parties agree that:

1. the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development for the reasons set out at p 49 of the Biodiversity Development Assessment Report dated 7 November 2024;

2. the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves given the distance between the property and the Hawkesbury-Nepean River System, as set out in drawing number C301 in the civil set of plans prepared by SYJ Consulting dated 4 November 2024;

3. no clearing of riparian vegetation is proposed;

4. the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised given the implementation of soil erosion and sediment controls measures set out at p 62 of the Biodiversity Development Assessment Report dated 7 November 2024 and drawing number C102 in the civil set of plans prepared by SYJ Consulting dated 4 November 2024; and

5. the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised given the distance between the property and the Hawkesbury-Nepean River System, as set out in drawing number C301 in the civil set of plans prepared by SYJ Consulting dated 4 November 2024.

3. For the purposes of s 6.8(2) of the Biodiversity SEPP the parties agree that the development will not:

1. If there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, as demonstrated in the Stormwater Management Plan at drawing number C301 in the civil set of plans prepared by SYJ Consulting dated 4 November 2024 and p 7 of the Civil Design Report prepared by SYJ Consulting dated 2 December 2024; or

2. Have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems, as demonstrated in the Stormwater Management Plan at drawing number C301 in the civil set of plans prepared by SYJ Consulting dated 4 November 2024 and the Civil Design Report prepared by SYJ Consulting on 2 December 2024.

4. For the purposes of s 6.9(2) of the Biodiversity SEPP the parties agree that the land does not currently provide public access to and from natural waterbodies, and no public access is proposed to and from natural waterbodies as part of the development the subject of the DA; and

5. For the purposes of s 6.10 of the Biodiversity SEPP the parties agree that the development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas, for the reasons set out on p 17 of the SEE.

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

27. The DA was lodged under the provisions of State Environmental Planning Policy (Building Sustainable Index: BASIX) 2004 (the BASIX SEPP). On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into force and repealed the BASIX SEPP. The DA is captured by the savings and transitional provisions set out in s 4.2(1) of the Sustainable Buildings SEPP and as such, remains subject to the provisions of the BASIX SEPP.

28. The Applicant provided an updated BASIX Certificate No. 1366923M_07 dated 16 August 2024 for the amended DA. Compliance with BASIX commitments is required pursuant to condition 1.1(9) of the conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. In relation to the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

30. For the purposes of s 4.6 of the Resilience SEPP, the parties advise that:

1. The land is contaminated. The Remediation Action Plan dated 6 August 2024 (the RAP) identifies that the existing contamination at the site poses a low potential for environmental impact;

2. The RAP states that the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out; and

3. Part 3.1-3.3 of the conditions of consent requires remediation to be carried out in accordance with the RAP to satisfy the requirements of the Resilience and Hazards SEPP.

31. I am satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

32. The parties advise that pursuant to s 2.48 of Infrastructure SEPP, the DA was referred to the electricity supply authority for the area, being Endeavour Energy (refer to [18] above). On 2 December 2024, Endeavour Energy recommended the approval of the DA, subject to the imposition of conditions, which have been included at condition 1.1(3)(6) of the conditions of consent.

33. As stated at paras [19] – [20], the DA was referred to TfNSW for concurrence under s 2.118 of the Infrastructure SEPP. The amended DA was re-referred to TfNSW by the Respondent on 29 November 2024. TfNSW provided a response on 9 December 2024, confirming it had no further comments on the amended DA.

34. The parties advise that s 2.120 of the Infrastructure SEPP applies to the DA, requiring that consent to the development must not be granted unless appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

1. In any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am; and

2. Anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time.

35. The Acoustic Report prepared by Acoustic Works and dated 7 February 2023 (see Tab 17 of the Class 1 Application) considers the “NSW Development Near Rail Corridors and Busy Roads - Interim Guideline and the NSW EPA Noise Guide for Local Government”. The Acoustic Report recommends that glazing treatments and alternative ventilation are adopted to achieve the required internal noise levels. The parties submit that condition 5.1(13) of the conditions of consent requires compliance with these recommendations.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021

36. The WPC SEPP is the relevant environmental planning instrument that applies to the site. In particular, Appendix 5 (Camden Growth Centres Precinct Plan) (the Precinct Plan) of the WPC SEPP applies.

37. Section 3.26 of the WPC SEPP relates to development on flood prone and major creeks land and provides additional heads of consideration for development requiring consent that is carried out on flood prone and major creeks land. The parties advise that they agree that the amended DA satisfactorily addresses the relevant matters for consideration pursuant to s 3.26(2) of the WPC SEPP.

38. The site consists of land zoned B3 Commercial Core, B4 Mixed Use, RE1 Public Recreation and SP2 Infrastructure (Classified Road and local drainage) under s 2.2 of the Precinct Plan; and

1. Section 2.3(2) of the Precinct Plan requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The parties advise that subdivision is permissible with consent in all applicable zones within the site and multi dwelling house is permissible with consent in the B4 Mixed Use Zone;

2. The parties advise that they are satisfied that the amended DA is consistent with the objectives of the relevant zones, to the extent they are relevant;

3. I am satisfied that the proposed development is consistent with the objectives for development within the zones in which the development is proposed to be carried out;

4. The parties advise that the amended DA complies with the relevant minimum lot size requirements at s 4.1(3) of the Precinct Plan;

5. Section 4.3 of the Precinct Plan relates to height of buildings. The parties advise that all townhouses in the proposed development are 8.2m in height. This complies with the maximum building height development standard of 24m for the site in the Precinct Plan;

6. The parties advise that there is no floor space ratio development standard control on the site in the Precinct Plan;

7. To the extent that the DA proposes vegetation removal, the parties are satisfied that by seeking development consent, the amended DA complies with s 5.9(3) of the Precinct Plan;

8. The parties advise that the site does not contain a heritage item nor is it located within a heritage conservation area for the purposes of subss 5.10(4), (5) and (9) of the Precinct Plan;

9. The parties are satisfied that adequate arrangements have been made to make sure that public utility infrastructure, that is essential for the proposed development, is available when required, pursuant to s 6.1 of the Precinct Plan.

39. The parties advise that the site contains vegetation mapped as Native Vegetation Retention on the Native Vegetation Protection Map in the WPC SEPP. For the purposes of s 6.2(6) of the Precinct Plan, the parties agree, having regard to the objectives for development in the relevant zone:

1. that there is no reasonable alternative available to the disturbance of the native vegetation;

2. that as little native vegetation as possible will be disturbed;

3. that the disturbance of the native vegetation will not increase salinity;

4. that native vegetation disturbed for the purposes of construction will be reinstated where possible on completion of construction;

5. that the loss of remnant native vegetation caused by the disturbance will be compensated by revegetation on or near the land to avoid any net loss of remnant native vegetation; and

6. that no more than 0.5 hectares of native vegetation will be cleared unless the clearing is essential for a previously permitted use of the land.

40. For the reasons set out in “Assessment of Clauses 6.2 and 6.3 of Appendix 5 of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 Class 1 Application” report as part of the Amended Application, and the Vegetation Management Plan as part of the Amended Application, the parties consider that the disturbance to native vegetation is acceptable.

41. The parties advise that a small part of the site is mapped as an Existing Native Vegetation Area for the purposes of s 6.3 of the Precinct Plan. The parties agree that the vegetation to be cleared within the Existing Native Vegetation Area does not meet the definition of Existing Native Vegetation in the Order to confer biodiversity certification subject to the Growth Centres SEPP. Accordingly, the parties are satisfied that the amended DA complies with s 6.3 of Appendix 5 of the Precinct Plan.

Leppington Town Centre Review Planning Proposal 2023

42. The Leppington Town Centre Review Planning Proposal 2023 (LTCRPP) was publicly exhibited between 7 November 2023 and 6 February 2024. The Respondent advises in the SOFAC that the LTCRPP proposes significant changes to the current WPC SEPP’s zoning map and land reserved for acquisition maps for the site. The LTCRPP is the culmination of a review of the Leppington Town Centre controls initiated in 2017.

43. On 6 December 2024, the NSW Department of Planning, Housing and Infrastructure (DPHI) identified Leppington Town Centre as a State-assessed Rezoning Proposal (SARP), in line with the State Significant Rezoning Policy. This means Camden and Liverpool City Councils will no longer finalise the LTCRPP (information sourced from Camden City Council’s website.)

44. The EPA Act at s 4.15(1)(a)(ii) states that:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  …

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved);

45. At Contention 1 in the SOFAC the Respondent:

1. Listed the proposed changes between the existing planning controls and those proposed in the LTCRPP and the effects of the proposed development of the site on the development of the Leppington Town Centre; and

2. Stated that the DA must be refused as the proposed development is inconsistent with the changes proposed to the zoning of the site, the Land Reserved for Acquisition (LRA), as contained in the LTCRPP, as well as changes that are proposed as part of the LTCRPP to the Indicative Layout Plan (ILP) and Street Network Plan (SNP) for the site currently under the Camden Growth Centres Development Control Plan 2024 (the DCP); and

3. Concluded that if the DA were to be approved, it would have significant environmental, social and economic impacts in the locality, as it would be inconsistent with the design and delivery of planned infrastructure and open space for the Leppington Town Centre.

46. The parties advise that:

1. As set out in contention 1 of the Respondent’s SOFC filed on 17 June 2024, the LTCRPP is a relevant consideration under s 4.15 of the EPA Act. However, compliance with the LTCRPP is not a jurisdictional prerequisite to the grant of development consent: Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at [6].

2. The parties agree that as a question of merit, the LTCRPP does not warrant the refusal of the amended DA.

Camden Growth Centres Development Control Plan 2024

47. The parties agree that all contentions raised in the SOFAC have been resolved by the amended and additional material provided by the Applicant during the course of the s 34 conference process and agreed conditions of consent.

Deferred Commencement Consent

48. The conditions of consent include a deferred commencement condition (condition 1.0(1)) under s 4.16(3) of the EPA Act.

49. Condition 1.0(1) is imposed to:

1. address outstanding insufficiencies in the application documents (particularly DRAINS models);

2. ensure that the proposed development is integrated with the Scalabrini Creek culvert outlet and Ingleburn Road upgrade design; and

3. facilitate the answering of a request for further information made by NSW DCCEEW.

50. The parties consider that condition 1.0(1) does not defer essential matters for consideration, and the consent does not lack finality or certainty as the outcome of the compliance with the deferred condition i.e. the matters of stormwater management and integration of the proposed development with infrastructure in the locality, has already been considered by the Respondent, and the request for information from DCCEEW was made as part of an email that advised “the Department has no objections to the DA in principle”.

51. The parties advise that:

1. Compliance with condition 1.0(1) will not significantly alter the development; and

2. The conditions satisfy the requirements in subs 76(1)-(3) of the Environmental Planning and Assessment Regulation 2021.

Conclusion

52. Having considered the advice of the parties provided above at [11]-[51], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

53. Further, 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.

54. 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.

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

56. The Court notes that:

1. Camden Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No 2023/341/1 made on 3 February 2025 to rely on the documents specified below:

Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
C001 Rev K	Civil Works Set - Cover Page	04.11.2024	SYJ Consulting
C002 Rev K	Civil Works Set – Legend Sheet	04.11.2024	SYJ Consulting
C003 Rev K	Civil Works Set – General Notes - 1	04.11.2024	SYJ Consulting
C004 Rev K	Civil Works Set – General Notes - 2	04.11.2024	SYJ Consulting
C005 Rev K	Civil Works Set – Plan of Subdivision of Lot 1 in DP 529937	04.11.2024	SYJ Consulting
C006 Rev K	Civil Works Set – Site Sections	04.11.2024	SYJ Consulting
C100 Rev K	Civil Works Set – Site Erosion and Sedimental Control Plan	04.11.2024	SYJ Consulting
C101 Rev K	Civil Works Set – Site Erosion and Sedimental Control Details	04.11.2024	SYJ Consulting
C102 Rev K	Civil Works Set – Site Erosion and Sedimental Control Notes	04.11.2024	SYJ Consulting
C200 Rev K	Civil Works Set – Site Cut and Fill Plan	04.11.2024	SYJ Consulting
C300 Rev K	Civil Works Set – Site General Arrangement Plan	04.11.2024	SYJ Consulting
C301 Rev K	Civil Works Set – Stormwater Management Plan	04.11.2024	SYJ Consulting
C302 Rev K	Civil Works Set – Pavement Plan	04.11.2024	SYJ Consulting
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
C303 Rev K	Civil Works Set – Edge Conditioning Plan	04.11.2024	SYJ Consulting
C304 Rev K	Civil Works Set – Signage and Linemarking Plan	04.11.2024	SYJ Consulting
C305 Rev K	Civil Works Set – Site Catchment Plan	04.11.2024	SYJ Consulting
C306 Rev K	Civil Works Set – External Catchment Plan	04.11.2024	SYJ Consulting
C308 Rev K	Civil Works Set – Bio- Retention Basin Decommissioning Plan	04.11.2024	SYJ Consulting
C310 Rev K	Civil Works Set – Typical Sections and Details - 1	04.11.2024	SYJ Consulting
C311 Rev K	Civil Works Set – Typical Sections and Details - 2	04.11.2024	SYJ Consulting
C312 Rev K	Civil Works Set – Typical Sections and Details - 3	04.11.2024	SYJ Consulting
C320 Rev K	Civil Works Set – Stormwater Details	04.11.2024	SYJ Consulting
C400 Rev K	Civil Works Set – Road Longitudinal Sections - 1	04.11.2024	SYJ Consulting
C401 Rev K	Civil Works Set – Road Longitudinal Sections - 2	04.11.2024	SYJ Consulting
C402 Rev K	Civil Works Set – Road Longitudinal Sections - 3	04.11.2024	SYJ Consulting
C403 Rev K	Civil Works Set – Road	04.11.2024	SYJ Consulting
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
Longitudinal Sections - 4
C520 Rev K	Civil Works Set – Culvert Longitudinal Section	04.11.2024	SYJ Consulting
C521 Rev K	Civil Works Set – Bio- Retention Basin Longitudinal Section and Swept Path Plan	04.11.2024	SYJ Consulting
C410 Rev K	Civil Works Set – Road Cross Sections - 1	04.11.2024	SYJ Consulting
C411 Rev K	Civil Works Set – Road Cross Sections - 2	04.11.2024	SYJ Consulting
C412 Rev K	Civil Works Set – Road Cross Sections - 3	04.11.2024	SYJ Consulting
C413 Rev K	Civil Works Set – Road Cross Sections - 4	04.11.2024	SYJ Consulting
C415 Rev K	Civil Works Set – Road Cross Sections – Road 1 ACOR Design	04.11.2024	SYJ Consulting
C416 Rev L	Civil Works Set – MCK1 Oneway Road Cross Sections	29.11.2024	SYJ Consulting
C414 Rev K	Civil Works Set – Ingleburn Road Cross Sections	04.11.2024	SYJ Consulting
C420 Rev K	Civil Works Set – Temporary Turning Heads and Interim Road Plan - 1	04.11.2024	SYJ Consulting
C421 Rev L	Civil Works Set – Temporary Turning Heads and Interim Road Plan - 2	29.11.2024	SYJ Consulting
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
C510 Rev K	Civil Works Set – Stormwater Longitudinal Sections – 1	04.11.2024	SYJ Consulting
C511 Rev K	Civil Works Set – Stormwater Longitudinal Sections – 2	04.11.2024	SYJ Consulting
C541 Rev K	Civil Works Set – Drains Model Layout and Results	04.11.2024	SYJ Consulting
P Rev K	Civil Works Set – Retaining Wall Detail Sheet 1	04.11.2024	SYJ Consulting
C701 Rev K	Civil Works Set – Detail Sheet 1	04.11.2024	SYJ Consulting
C800 Rev E	Civil Works Set – Site General Arrangement Plan	10.18.2024	SYJ Consulting
C810 Rev E	Civil Works Set – OSD Tank Section & Typical Details	10.18.2024	SYJ Consulting
Interim Drains Model	02.12.2024	SYJ Consulting
Ultimate Drains Model	02.12.2024	SYJ Consulting
Civil Engineering Design Report	02.12.2024	SYJ Consulting
Ref 22277	Traffic Assessment Report	15.10.2024	TTPA
Sheet 1 of 4	Swept Path Assessment - Access & Departure of an 8.8m Medium Rigid Vehicle	01.11.2024	TTPA
Sheet 2 of 4	Swept Path Assessment - Access & Departure of an 8.8m Medium Rigid Vehicle	01.11.2024	TTPA
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
Sheet 3 of 4	Swept Path Assessment - Access & Departure of an 12.5m Heavy Rigid Vehicle	01.11.2024	TTPA
Sheet 4 of 4	Swept Path Assessment - Access & Departure of an 12.5m Heavy Rigid Vehicle	01.11.2024	TTPA
Project No. 2021-013	Demolition Plan	N/A	Urban Link
DA-000 Rev E	Architectural Set - Site Cover	20.09.2024	Urban Link
DA-001 Rev E	Architectural Set - Site Location	20.09.2024	Urban Link
DA-002 Rev E	Architectural Set – Site Superlot	20.09.2024	Urban Link
DA-003 Rev E	Architectural Set – Site Subdivision Plan	20.09.2024	Urban Link
DA-004 Rev E	Architectural Set – Site Analysis	20.09.2024	Urban Link
Rev E	Architectural Set – Site Plan	20.09.2024	Urban Link
DA-006 Rev E	Architectural Set – Site Plan 1:500	20.09.2024	Urban Link
DA-111 Rev E	Architectural Set - Floor Plans – Block 3.A Ground Floor Plan	20.09.2024	Urban Link
DA-112 Rev E	Architectural Set – Floor Plans – Block 3.A First Floor	20.09.2024	Urban Link
DA-113 Rev E	Architectural Set – Floor Plans – Block 3.A Roof Plan	20.09.2024	Urban Link
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
DA-121 Rev E	Architectural Set – Floor Plans – Block 3.B Ground Floor Plan	20.09.2024	Urban Link
DA-122 Rev E	Architectural Set – Floor Plans – Block 3.B First Floor	20.09.2024	Urban Link
DA-123 Rev E	Architectural Set – Floor Plans – Block 3.B Roof	20.09.2024	Urban Link
DA-201 Rev E	Architectural Set – Elevations	20.09.2024	Urban Link
DA-301 Rev E	Architectural Set – Sections A, B & C	20.09.2024	Urban Link
DA-901 Rev E	Architectural Set – External Finishes – Finishes Schedule	20.09.2024	Urban Link
DA-902 Rev E	Architectural Set – External Finishes – Finishes Schedule	20.09.2024	Urban Link
DA-1401 Rev E	Architectural Set – Compliance Townhouses	20.09.2024	Urban Link
DA-1402 Rev E	Architectural Set – Compliance – Shadow Study June 21st 9:00am-3:00pm	20.09.2024	Urban Link
DA-1403 Rev E	Architectural Set – Compliance – Sun View Diagram	20.09.2024	Urban Link
DA-1404 Rev E	Architectural Set – Compliance – Accessible Units	20.09.2024	Urban Link
DA-1405 Rev E	Architectural Set – Compliance – House Type	20.09.2024	Urban Link
DA-1406 Rev E	Architectural Set – Compliance – House Type	20.09.2024	Urban Link
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
DA-1407 Rev E	Architectural Set – Compliance – House Type	20.09.2024	Urban Link
DA-1408 Rev E	Architectural Set – Compliance – Calculation	20.09.2024	Urban Link
Ref 22346	Waste Management Plan	19.09.2024	Dickens Solutions
000 Rev J	Landscape Set - Coversheet	23.09.2024	Site Image
101 Rev J	Landscape Set - Masterplan Lot 4	23.09.2024	Site Image
102 Rev H	Landscape Set - Block 4	23.09.2024	Site Image
201 Rev G	Landscape Set - Lot 1 Typical Townhouse	20.09.2024	Site Image
202 Rev H	Landscape Set - Lot 2 Typical Townhouse	23.09.2024	Site Image
203 Rev I	Landscape Set - Lot 1 Pedestrian Access	23.09.2024	Site Image
501 Rev C	Landscape Set - Details	02.08.2024	Site Image
502 Rev B	Landscape Set - Street Tree Details	02.08.2024	Site Image
1366923M_07	BASIX Certificate	16.08.2024	Noura Al Hazzouri
0008411440	Nationwide House Energy Rating Scheme Certificate	15.08.2024	Noura Al Hazzouri
23-008 Rev 5	Bush Fire Assessment Report	23.09.2024	Australian Bushfire Consulting Services Pty
Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
Limited
Rev B	Arboricultural Statement	20.09.2024	DJD Tree Consultancy
E26357.G17 Rev 0	Assessment of Soil Salinity	18.04.2024	EI Australia
E26357.E25 Rev 0	Dam Dewatering Report	30.04.2024	EI Australia
E26357.E03 Rev 1	Additional Site Investigation	6.08.2024	EI Australia
E26357.E06 Rev 1	Remediation Actional Plan	6.08.2024	EI Australia
Ver 2.3	Biodiversity Development Assessment Report	04.11.2024	Land Eco Consulting
Final 1.0	Vegetation Management Plan	16.08.2024	Land Eco Consulting
Assessment of Clauses 6.2 and 6.3 of Appendix 5 of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021	04.11.2024	Land Eco Consulting
Review of the Endeavour Energy network on the power supply options for the Site	01.08.2024	AAPE

57. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application No 2023/341/1, as amended, for Torrens title subdivision to create 1 open space lot, 2 residential lots and 3 residue lots with tree removal, demolition of structures, dam decommission, earthworks, road construction, drainage, servicing, construction of 17 multi-dwelling housing units, car parking, landscaping and associated site works at 120 Ingleburn Road, Leppington NSW 2179 (legally known as Lot 1 Deposited Plan 529937), subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

(Annexure A) (572373, pdf)

**********

Decision last updated: 05 May 2025