Universal Property Group Pty Limited v Blacktown City Council

[2024] NSWLEC 1001

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Limited v Blacktown City Council [2024] NSWLEC 1001

Hearing dates:

Conciliation conference on 14 December 2023

Date of orders:

10 January 2024

Decision date:

10 January 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant is directed to file the amended development application the subject of order 3 below within seven (7) days of

the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application No DA-23-00128, as amended, for the staged subdivision of

land into 116 Torrens title lots over two stages including building envelope plans, the construction of public roads, stormwater

drainage, dam dewatering, tree removal and other associated site works on land legally described as Lot 42 and Lot 43 in

DP30186 and known as 151 and 161 Tallawong Road, Rouse Hill NSW 2155, subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2

State Environmental Planning Policy (Precincts – Central River City) 2021, s 3.26, Appendix 11, ss 2.3, 4.1AA, 4.1B, 6.1

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

Category:

Principal judgment

Parties:

Universal Property Group Pty Limited (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Podinic (Solicitor) (Respondent)

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

File Number(s):

2023/118643

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application No DA-23-00128 for the Torrens title subdivision of land into 114 residential lots over 2 stages including construction of public roads, stormwater drainage, dam de-watering, tree removal and associated site works (development application) at Lot 42 and 43 in DP 30186, also known as 151 and 161 Tallawong Road, Rouse Hill (site).

2. The proceedings were set down for a hearing on 14 December 2023. The parties agreed that following the joint conferencing of the experts, further changes to the plans and the agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 14 December 2023. I have presided over the conciliation conference.

4. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the applicant amending development application No DA-23-00128 in accordance with the documents listed at [26] (amended application). 

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended application.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. I am satisfied that owner’s consent accompanied the development application.

11. The development application was lodged to the respondent on 13 February 2023. The respondent notified the development application between 13 July 2023 to 13 August 2023. Six submissions were received raising concerns about:

• The site could be better used as a park;

• Impacts on wildlife, environment and conservation;

• Traffic;

• Removal of the dam reduces the aesthetic of the area;

• Sufficient water; and

• Loss of community character.

12. One submission was provided to the Court before the commencement of the listed hearing (prior to the conciliation conference). The concerns raised are substantially similar to those at [11].

13. As the parties have reached agreement, the concerns raised have been considered by the consent authority, who are satisfied that where possible, the issues have been addressed by the amended application.

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

14. The site is subject to the State Environmental Planning Policy (Precincts – Central River City) 2021 (SEPP Central River City). Appendix 11 Blacktown Growth Centres Precinct Plan (Precinct Plan) applies.

15. The site is partly mapped as flood prone on the North West Growth Centre Development Control Map. The parties advise that they have considered the provisions of s 3.26, supported by the Flood Advice letter prepared by Rhelm dated 10 October 2023.

16. The site is zoned R2 Low Density Residential under the Precinct Plan. The proposed development is permissible with consent. Pursuant to s 2.3, I have had regard to the objectives of the zone.

17. The amended application relies on s 4.1AA subdivision resulting in lots between 225–300m² of the Precinct Plan. The subdivision plan and building envelopment plan prepared by The Bathla Group dated November 2023 demonstrate the building envelopes and compliant minimum lot sizes. The parties agree and I accept that the minimum lot size is met.

18. Section 4.1B residential density of the Precinct Plan applies to the site. The parties agree and I accept that the amended application is above the minimum density of 15 dwellings per hectare, at 28.5 dwellings per hectare.

19. Section 6.1 Public Utility Infrastructure of the Precinct Plan applies to the proposed development. The parties agree that water, electricity and sewer is currently available and I accept that the requirements of cl 6.1 have been satisfied.

State Environmental Planning Policy(Biodiversityand Conservation) 2021

20. Chapter 6, Part 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies, as the site is located within the Hawkesbury-Nepean Catchment.

21. The parties agree that the relevant flooding, water quality, catchment, vegetation and scenic quality provisions under Pt 6.2 have been addressed by the amended application through the following supporting information:

• Engineering plans prepared by Enspire Solutions dated 7 December 2023;

• Civil Engineering and Stormwater Management Design Report prepared by Enspire dated 3 July 2023;

• Flood Advice prepared by Rhelm dated 10 October 2023;

• Arboricultural Impact Assessment Statement prepared by Hugh The Arborist dated 13 November 2023;

• Stage 1 Soil Supplemented Preliminary Environmental Site Assessment for 151 Tallawong Road prepared by DLA Environmental dated 20 March 2014;

• Soil Supplemented Preliminary Site Investigation for 161 Tallawong Road prepared by DLA Environmental dated April 2017;

• Stage 2 Detailed Site Investigation for 151 Tallawong Road prepared by Sydney Environmental Group dated 10 July 2023;

• Remedial Action Plan for 151 Tallawong Road prepared by Sydney Environmental Group dated 10 July 2023;

• Detailed Site Investigation for 161 Tallawong Road prepared by Sydney Environmental Group dated 24 August 2023;

• Dewatering Management Plan prepared by H20 Consulting Group dated 17 August 2023;

• Biodiversity Assessment prepared by NGH Consulting dated 20 December 2022;

• Preliminary Salinity and Geotechnical Assessment prepared by Martens Consulting Engineers dated 24 May 2019; and

• Aboriginal Heritage Due Diligence Assessment prepared by NGH Consulting dated 20 December 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is supported by as a Remedial Action Plan prepared by Sydney Environmental Group dated 10 July 2023 which sets out the required remediation for the site. Appropriate conditions of consent have been included at Annexure A. On this basis, the parties agree and I am satisfied that s 4.6 has been met.

Conclusion

23. 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.

24. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

25. 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.

26. The Court notes that the respondent has approved, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending development application No DA-23-00128 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Drawing No DA02 Revision 6	Subdivision Plan (Stage 1)	The Bathla Group	11 December 2023
	Drawing No DA04 Revision 6	Building Envelope Plan (Stage 1)		11 December 2023
Engineering Plans
2	Drawing No. 220093-DA-C01.01 Revision 7	Cover Sheet and Drawing Schedule	Enspire Solutions Pty Ltd	7 December 2023
	Drawing No. 220093-DA-C01.21 Revision 5	Specification Notes and Legends – Sheet 01		10 November 2023
	Drawing No. 220093-DA-C01.22 Revision 5	Specification Notes and Legends – Sheet 02		10 November 2023
	Drawing No. 220093-DA-C01.41 Revision 6	General Arrangement		7 December 2023
	Drawing No. 220093-DA-C03.01 Revision 7	Erosion and Sediment Control Plan		7 December 2023
	Drawing No. 220093-DA-C03.21 Revision 5	Erosion and Sediment Control Details		10 November 2023
	Drawing No. 220093-DA-C04.01 Revision 7	Cut and Fill Plan		7 December 2023
	Drawing No. 220093-DA-C05.01 Revision 7	Siteworks and Stormwater Management Plan – Sheet 01		7 December 2023
	Drawing No. 220093-DA-C05.02 Revision 7	Siteworks and Stormwater Management Plan – Sheet 02		7 December 2023
	Drawing No. 220093-DA-C05.03 Revision 7	Siteworks and Stormwater Management Plan – Sheet 03		7 December 2023
	Drawing No. 220093-DA-C05.04 Revision 7	Siteworks and Stormwater Management Plan – Sheet 04		7 December 2023
	Drawing No. 220093-DA-C05.05 Revision 4	Siteworks and Stormwater Management Plan Ultimate Arrangement – Sheet 01		7 December 2023
	Drawing No. 220093-DA-C06.01 Revision 5	Road Typical Cross Sections		10 November 2023
	Drawing No. 220093-DA-C07.01 Revision 5	Road Longitudinal Sections Road 01 – Sheet 01		10 November 2023
	Drawing No. 220093-DA-C07.02 Revision 5	Road Longitudinal Sections Road 02 – Sheet 02		10 November 2023
	Drawing No. 220093-DA-C07.03 Revision 5	Road Longitudinal Sections Road 03 – Sheet 03		10 November 2023
	Drawing No. 220093-DA-C07.04 Revision 5	Road Longitudinal Sections Road 06 and Tallawong Road – Sheet 04		10 November 2023
	Drawing No. 220093-DA-C11.01 Revision 6	Pavement Signage and Linemarking Plan – Sheet 01		7 December 2023
	Drawing No. 220093-DA-C11.02 Revision 6	Pavement Signage and Linemarking Plan – Sheet 02		7 December 2023
	Drawing No. 220093-DA-C11.03 Revision 6	Pavement Signage and Linemarking Plan – Sheet 03		7 December 2023
	Drawing No. 220093-DA-C11.04 Revision 6	Pavement Signage and Linemarking Plan – Sheet 04		7 December 2023
	Drawing No. 220093-DA-C17.01 Revision 6	Stormwater Longitudinal Sections – Sheet 01		7 December 2023
	Drawing No. 220093-DA-C17.02 Revision 6	Stormwater Longitudinal Sections – Sheet 02		7 December 2023
	Drawing No. 220093-DA-C17.03 Revision 6	Stormwater Longitudinal Sections – Sheet 03		7 December 2023
	Drawing No. 220093-DA-C17.04 Revision 6	Stormwater Longitudinal Sections – Sheet 04		7 December 2023
	Drawing No. 220093-DA-C17.05 Revision 6	Stormwater Longitudinal Sections – Sheet 05		7 December 2023
	Drawing No. 220093-DA-C17.06 Revision 6	Stormwater Longitudinal Sections – Sheet 06		7 December 2023
	Drawing No. 220093-DA-C18.51 Revision 7	Bio-retention Basin Plan		7 December 2023
	Drawing No. 220093-DA-C18.52 Revision 2	Bio-retention Basin Sections		10 November 2023
	Drawing No. 220093-DA-C18.53 Revision 6	Bio-retention Basin Details		7 December 2023
	Drawing No. 220093-DA-C20.01 Revision 6	Pre-development Catchment Plan		7 December 2023
	Drawing No. 220093-DA-C21.01 Revision 6	Post-development Catchment Plan		7 December 2023
	Drawing No. 220093-DA-C21.51 Revision 5	Internal Catchment Plan		10 November 2023
	Drawing No. 220093-DA-C22.01 Revision 5	Turning Path Plan		10 November 2023

Orders:

27. The Court orders:

1. The applicant is directed to file the amended development application the subject of order 3 below within seven (7) days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application No DA-23-00128 as amended, for the staged subdivision of land into 116 Torrens title lots over two stages including building envelope plans, the construction of public roads, stormwater drainage, dam dewatering, tree removal and other associated site works on land legally described as Lot 42 and Lot 43 in DP30186 and known as 151 and 161 Tallawong Road, Rouse Hill NSW 2155, subject to the conditions at Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A (532923, pdf)

**********

Decision last updated: 10 January 2024