Universal Property Group Pty Ltd v Blacktown City Council

[2023] NSWLEC 1592

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2023] NSWLEC 1592

Hearing dates:

Conciliation conference held on 29 September 2023

Date of orders:

10 October 2023

Decision date:

10 October 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-22-00682, as amended, which seeks demolition of existing structures, staged subdivision of land into 15 lots, comprising 13 x Torrens Title residential lots, 1 x C2 environmental conservation and C4 environmental living lot, 1 x RE1 public recreation lot, construction of public roads, stormwater drainage, and associated site works on Lot 1 in DP 1192683, also known as 30 Veron Road, Schofields, is determined by the grant of consent subject to the conditions of consent contained at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

State Environment Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 9

State Environmental Planning Policy (Precincts-Central River City) 2021, Appendix 9, ss 2.3, 3.2, 3.26

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

Water Management Act 2000, s 91

Texts Cited:

Blacktown City Council Community Engagement Strategy and Community Participation Plan 2022-2024

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Reid (Applicant)
P Shumack (Solicitor) (Respondent)

Solicitors:
Macpherson Kelly (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/310374

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA-22-00682 (the DA) by the Blacktown City (hereafter the Council) which, as amended, seeks demolition of existing structures, Torrens title subdivision over two stages into 15 lots including 13 allotments that will be utilised for residential, one lot for environmental conservation/environmental living and one lot for public recreation, construction of public roads, drainage, landscaping and associated site works on Lot 1 Deposited Plan 1192683, known as 30 Veron Road, Schofields (hereafter the site).

Background

2. The DA was lodged with the Council on 8 June 2022. The original DA was notified to residents, with no submissions received. The DA was referred to Rural Fire Service (RFS) and Department of Planning and Environment – Water (DPE-Water), pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA was also referred to Transport for NSW.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held via Microsoft Teams before me as the Duty Commissioner.

5. The Court granted leave to amend the DA on 22 June 2023, consistent with the Applicant’s Notice of Motion filed with the Court on 14 June 2023.

6. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

7. Based on the amendments to the DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise the Court that the contentions of Council have been considered and are resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA-22-00682, with conditions as described in Annexure A.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA-22-00682, subject to conditions in Annexure A.

Jurisdictional prerequisites

9. The site is mapped as bushfire prone, based on Council mapping. The DA is subject to consideration of s 4.14 of the EPA Act. In response to the referral of the original and amended DA, including the Bushfire (Protection) Assessment Report, prepared by Eco logical, dated 15 October 2021 and 14 June 2023, RFS issued a Bushfire Safety Authority and General Terms of Approval (GTA’s) relating to the amended DA, pursuant to s 100B of the Rural Fires Act 1997 on 11 July 2023. The relevant conditions are described in the agreed conditions of consent, in Annexure A. The requirements of s 4.14 of the EPA Act are sufficiently addressed.

10. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:

1. Water Management Act 2000 (WM Act):

1. The site has frontage along its rear boundary to Eastern Creek, and there are works proposed within 40m of the mapped watercourse. The DPE-Water are a concurrence authority, who issued GTA’s for the proposed development, that are included in the conditions of consent in Annexure A. There has been no response to the amended DA. Section 91 of the WM Act, requires a controlled activity approval for the proposed development, as described in Annexure A.

2. State Environmental Planning Policy (Precincts-Central River City) 2021 (SEPP Precincts):

1. Appendix 9 (Schofields Precinct Plan) of the SEPP Precincts relates to the site and provides relevant provisions in consideration of the DA.

2. The site is located on land zoned as R2 Low Density Residential, C2 Environmental Conservation, C4 Environmental Living and RE1 Public Recreation, pursuant to s 2.3 of Appendix 9 of the SEPP Precincts. The proposed subdivision of lots and associated civil works are permissible with consent in the respective zones. No works are proposed in the C2 and RE1 zones.

3. The DA is supported by a Statement of Environmental Effects (SEE) prepared by The Bathla Group, dated March 2023 and an Amended SEE, prepared by Think Planners, dated 7 August 2023.

4. The amended DA is supported by relevant documents, together with agreed conditions of consent which sufficiently address the relevant objectives, aims, standards and requirements of the SEPP Precincts, and specifically as described in Appendix 9, relevant to the respective zone provisions.

5. Pursuant to s 3.2 of the SEPP Precincts, the site is mapped as flood prone. The DA relies on the Flood Plain Bulk Earthworks Plan, Drawing 051, prepared by Indesco (Rev D) that demonstrates earthworks in the area of flood prone land will not cause adverse impact. The requirements of s 3.26 of the SEPP Precincts are addressed.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The contamination status of the site must be considered, prior to grant of consent. The Council has assessed that the site is suitable for (future) residential use, based on its historic use and documents that support the DA, including the Site Contamination Investigation Report, prepared by Geotesta, dated 29 June 2021, which together with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.

4. State Environment Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. Based on the proposed clearing of the site, the DA is subject to consideration of the provisions of the SEPP Biodiversity, specifically Ch 2. The DA is supported by a Statement of Non-Requirement for Arboricultural Impact Report, prepared by Monaco Designs Pty Ltd, dated 16 August 2022. The documents that support the DA confirm that the proposed removal of Tree 14 is an exempt specimen and the proposed landscaping is complimentary to the streetscape. The amended DA addresses the relevant provisions of Ch 2.

2. The site has frontage to Eastern Creek and located within the catchment of the Hawkesbury-Nepean River. Based on the date of DA submission to the Council, Ch 9 of the SEPP Biodiversity is a relevant for consideration. The stormwater drainage management proposed for the site is not considered to cause adverse impact in the catchment, relevantly addressing the requirements of Ch 9 of the SEPP Biodiversity.

5. State Environment Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport):

1. The site is dissected by and adjacent to South Street/Schofields Road, engaging relevant provisions of the SEPP Transport. Pursuant to s 2.120, the DA is supported by a Traffic Noise Intrusion Report, prepared by Acoustic Logic, dated 11 October 2021.

6. Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (DCP):

1. The original DA was publicly notified in accordance with the DCP and the Council’s Community Engagement Strategy and Community Participation Plan, with no submissions received.

2. The relevant requirements of the DCP are generally complied with.

11. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners relevant to the (amended) DA. All proposed works are contained within the site.

Grant of consent

12. In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

13. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention have been addressed by the amendments made and supporting documents to the application.

14. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-22-00682 should be granted consent subject to conditions described in Annexure A, as it addresses the relevant requirements of the EPA Act.

15. 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.

16. The Court notes that:

1. Blacktown City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA-22-00682, as follows:

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Drawing No DA01 Revision 8	Site Analysis	The Bathla Group	18 August 2023
	Drawing No DA02 Revision 9	Subdivision Plan Stage 1		18 August 2023
	Drawing No DA03 Revision 7	Subdivision Plan Stage 2		18 August 2023
	Drawing No DA04 Revision 9	Building Envelope Plan		18 August 2023
	Drawing No DA05 Revision 8	Density Plan		18 August 2023
	Drawing No DA06 Revision 7	Orderly Development Plan		15 August 2023
	Drawing No DA07 Revision 8	Shadow Analysis 1		18 August 2023
	Drawing No DA08 Revision 8	Shadow Analysis 1		18 August 2023
Engineering Plans
2	Drawing No. 8276-DA-000	Cover Sheet	Indesco Pty Ltd	May 2023
	Drawing No. 8276-DA-001 Revision B	General Notes and Legend Sheet 1 of 2		14 December 2021
	Drawing No. 8276-DA-002 Revision D	General Notes and Legend Sheet 2 of 2		14 April 2023
	Drawing No. 8276-DA-005 Revision D	Zoning Plan		14 April 2023
	Drawing No. 8276-DA-010 Revision F	Demolition Plan		29 August 2023
	Drawing No. 8276-DA-020 Revision H	Erosion and Sediment Control Plan		29 August 2023
	Drawing No. 8276-DA-021 Revision D	Erosion and Sediment Control Notes and Details		13 May 2022
	Drawing No. 8276-DA-050 Revision G	Bulk Earthworks		11 August 2023
	Drawing No. 8276-DA-051 Revision D	Flood Plain Bulk Earthworks Plan		11 August 2023
	Drawing No. 8276-DA-060 Revision F	Site Sections Sheet 1 of 3		11 August 2023
	Drawing No. 8276-DA-061 Revision D	Site Sections Sheet 2 of 3		14 April 2023
	Drawing No. 8276-DA-062 Revision B	Site Sections Sheet 3 of 3		14 April 2023
	Drawing No. 8276-DA-080 Revision D	OSD Basin Plan and Section Sheet 1 of 2		11 August 2023
	Drawing No. 8276-DA-081 Revision B	OSD Basin Plan and Section Sheet 1 of 2		11 August 2023
	Drawing No. 8276-DA-082 Revision C	OSD Details		11 August 2023
	Drawing No. 8276-DA-100 Revision H	Engineering Plan Sheet 1 of 2		29 August 2023
	Drawing No. 8276-DA-101 Revision F	Engineering Plan Sheet 2 of 2		23 May 2023
	Drawing No. 8276-DA-102 Revision C	Basin Decommissioning Plan		29 August 2023
	Drawing No. 8276-DA-103 Revision C	Basin Decommissioning Plan Ultimate Scenario		29 August 2023
	Drawing No. 8276-DA-200 Revision C	Road Typical Cross Section		14 April 2023
	Drawing No. 8276-DA-300 Revision D	Proposed Road Longitudinal		14 April 2023
	Drawing No. 8276-DA-310 Revision E	Ultimate Drainage Longitudinal Sections Sheet 1 of 3		11 August 2023
	Drawing No. 8276-DA-311 Revision E	Ultimate Drainage Longitudinal Sections Sheet 2 of 3		11 August 2023
	Drawing No. 8276-DA-312 Revision C	Ultimate Drainage Longitudinal Sections Sheet 3 of 3		11 August 2023
	Drawing No. 8276-DA-313 Revision B	Temporary Drainage Longitudinal Sections Sheet 1 of 3		11 August 2023
	Drawing No. 8276-DA-314 Revision B	Temporary Drainage Longitudinal Sections Sheet 2 of 3		12 August 2023
	Drawing No. 8276-DA-350 Revision E	Pavement Plan		29 August 2023
	Drawing No. 8276-DA-400 Revision C	Pre Development Catchment Plan		23 May 2023
	Drawing No. 8276-DA-410 Revision H	Post Development Catchment Plan		29 August 2023
	Drawing No. 8276-DA-411 Revision C	Music Catchment Plan		29 August 2023
	Drawing No. 8276-DA-420 Revision D	Hydrology Calculations Ultimate Scenario		14 August 2023
	Drawing No. 8276-DA-421 Revision D	Hydraulic Calculations Ultimate Scenario		14 August 2023
	Drawing No. 8276-DA-422 Revision B	Hydraulic Calculations Temporary Scenario		14 August 2023
	Drawing No. 8276-DA-423 Revision B	Hydraulic Calculations Temporary Scenario		14 August 2023
	Drawing No. 8276-DA-500 Revision E	Signage and Line Marking		29 August 2023
	Drawing No. 8276-DA-510 Revision C	Vehicle Turning Path		29 August 2023
Reports / documents
3	Supplementary Statement of Environmental Effects		Think Planners Pty Ltd	7 August 2023

2. The above amendments to Development Application DA-22-00682 were filed with the Court on 26 September 2023.

17. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-22-00682, as amended, which seeks demolition of existing structures, staged subdivision of land into 15 lots, comprising 13 x Torrens Title residential lots, 1 x C2 environmental conservation and C4 environmental living lot, 1 x RE1 public recreation lot, construction of public roads, stormwater drainage, and associated site works on Lot 1 in DP 1192683, also known as 30 Veron Road, Schofields, is determined by the grant of consent subject to the conditions of consent contained at Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (433710, pdf)

**********

Decision last updated: 10 October 2023