Universal Property Group Pty Ltd v Camden Council

[2023] NSWLEC 1738

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Camden Council [2023] NSWLEC 1738

Hearing dates:

Conciliation conference on 16 November 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $13,000.

(2) The appeal is upheld.

(3) Development Application No DA/2021/378/1, as amended, for the remediation of land, demolition of existing structures, consolidation of two lots, staged Torrens title subdivision of land creating 60 residential lots, 1 RE1 zoned lot and 1 SP2 zoned lot in Stage 1, and 4 residential lots in Stage 2, construction of public roads and drainage works, landscaping and associated site works, is determined by the grant of development consent for land legally described as Lots 27 and 28 DP117857 and known as 1375 and 1383 Camden Valley Way, Leppington, NSW, 2179 subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2000, cl 55

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 9, Pts 9.2, 9.3, 9.4 (repealed)

State Environmental Planning Policy Amendment (Water Catchments) 2022, s 6.65

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 5, Pts 4, 5, 6, ss 2.1, 2.6, 2.7, 4.1AA, 4.1AB, 4.1B, 5.3, 6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

Camden Growth Centre Precincts Development Control Plan 2023

Camden Community Participation Plan 2021

Category:

Principal judgment

Parties:

Universal Property Group Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/346820

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA/2021/378/1 (the DA) for remediation of contaminated land, demolition of existing structures, consolidation of two lots into one, staged Torrens title subdivision over three stages, road construction, drainage construction, landscaping and associated works on land legally described as Lots 27 and 28 DP117857and known as 1375 and 1383 Camden Valley Way, Leppington, NSW, 2179 (the site).

2. 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 24 May 2023. No agreement was reached. On 27 September 2023 the Applicant was granted leave by the Court to formally amend the DA in response to the Respondent’s Statement of Facts and Contentions (SOFAC) dated 20 December 2022.

3. The DA as then amended, sought consent for the remediation of contaminated land, demolition of existing structures, consolidation of two lots into one, consolidation of two lots into one, staged Torrens title subdivision creating 60 residential lots, 1 RE1 zone lot and 1 SP2 drainage lot in Stage 1, and 4 residential lots in Stage 2, road construction, drainage construction, landscaping and associated works at the site.

4. The DA was further amended to address outstanding issues (the amended DA) and Council, as the relevant consent authority, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, approved the application for an amendment to development application on 16 November 2023.

5. The matter was listed for hearing on 16 November 2023. The parties filed a signed s 34 agreement (including Annexure A) with the Court on 10 November 2023. The Court made an order on 15 November 2023 vacating the hearing and listing the matter for a s 34 conciliation conference on 16 November 2023. I presided over the conciliation conference.

6. At the conciliation conference on 16 November 2023 the parties indicated that they had generally reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, subject to correcting a mis-description in the description of the proposed development and the addition of a condition relating to the regional detention basin. The final signed s 34 agreement with updated Annexure A incorporating these changes to the conditions of consent was filed on 16 November 2023.

7. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

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 to grant consent to the DA.

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 written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The DA was lodged on 20 April 2021. Owner’s consent was obtained by the Applicant for the lodgement of the DA.

Community Participation (Sch 1, Div 2, 7(1))

12. The DA was notified in accordance with the Camden Community Participation Plan 2021 from 3 May 2021 to 2 June 2021. One submission was received was received in response to that notification. The parties advise that the Court can be satisfied that the submissions raised have been addressed in the Amended DA.

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 DA was submitted as integrated development pursuant to s100B of the Rural Fires Act 1997 (RFA). However, the parties advise that the site is not bushfire prone land for the purposes of s 100B of the RFA and therefore no referral was made.

Evaluation under Section 4.15

15. The parties agree that the amended DA can be approved taking into consideration the matters in s 4.15(b) to (e) of the EPA Act, and that matters relevant to s 4.15 (b), (c) and (d) are considered generally in the Statement of Environmental Effects submitted with the DA.

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

16. The State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Western Parkland City Precincts SEPP) is the relevant environmental planning instrument that applies to the site. Appendix 5 (Camden Growth Centres Precinct Plan) of the Western Parkland City Precincts SEPP (the Precinct Plan) applies to the site; and

1. The site is zoned R2 Low Density Residential, RE1 Public Recreation and SP2 Infrastructure (Drainage) pursuant to s 2.1 of the Precinct Plan; and

1. The proposed subdivision works are permissible under s 2.6 of the Precinct Plan;

2. The proposed demolition works are permissible with consent under s 2.7 of the Precinct Plan;

3. The proposed works in the R2 Zone area of the site will provide for future, low density residential development with a variety of housing types;

4. 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.

2. Part 4 of Appendix 5 contains principal development standards that apply to the site. Sections 4.1AA (Subdivision resulting in lots between 225–300m²), 4.1AB (Minimum lot sizes), 4.1B (Residential Density) provide a framework for the proposed subdivision of the site; and

1. The parties submit that the amended DA complies with these principal development standards.

3. Part 5 of Appendix 5 contains s 5.3 (Development Near Zone Boundaries) which applies as the R2 zoned land within the site is adjacent to the RE1 Zone (i.e. within 10 metres as prescribed under s 5.3(2)(a)). Section 5.3(4) provides that development consent can only be granted if the consent authority is satisfied that the development is not inconsistent with the objectives for development in both zones and the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land; and

1. The parties are of the view that the Court can be satisfied that the Amended DA is consistent with all applicable zone objectives;

2. Section 5.3(4)(c) does not apply to the site as it is not mapped on the Land Reservation Acquisition Map.

17. Section 6.1 (Public Utility Infrastructure) in Pt 6 of Appendix 5 applies to the site. The consent authority must not grant development consent to development on land to which this Precinct Plan applies unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required; and

1. Water, sewer, electricity and telecommunication services are available at the site. The amended DA is accompanied by a connection offer from Endeavour Energy and a Notice of Anticipated Requirements from Sydney Water. Any additional required utility clearances will be obtained prior to works commencing on the site;

2. The parties advise that the Court can be satisfied that the essential services will be made available to the proposed development when required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation; and

1. The parties advise that the amended DA proposes the removal of trees from the site, and that a preliminary tree assessment has been prepared with a proposed condition to require a further tree survey;

2. The amended DA provides for landscaping in the form of street trees. The parties submit that the proposed landscaping will positively contribute to the cohesiveness of the area whilst providing relief from the proposed roads and future built forms.

19. The former Ch 9 of the Biodiversity and Conservation SEPP applies to the proposed development (through the savings provisions contained in s 6.65 of the State Environmental Planning Policy Amendment (Water Catchments) 2022. The site is located within the Hawkesbury-Nepean Catchment, specifically the South Creek Sub-Catchment. Former Part 9.3 provides that development in a Hawkesbury-Nepean conservation area sub-catchment requires development consent. The consent authority must consider the matters in former Pt 9.4; and

1. The parties advise that the matters for consideration under former Pts 9.2 and 9.3 of the Biodiversity and Conservation SEPP have been addressed in the reports which accompany the amended DA, and that the Court can properly consider the same.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out; and

1. A Contamination Site Investigation Report has been prepared for the site which concludes that there is a medium to high risk of soil and groundwater contamination, and that the site can be made suitable for the proposed development pending the successful application of a remedial action plan;

2. A Remedial Action Plan (RAP) has been prepared which provides strategies and methodologies for the proper remediation of the site. The RAP concludes that, following the implementation of the measures outlined in the RAP, the site can be made suitable for the proposed residential development;

3. Condition 5(17) of the Agreed Conditions includes validation of the remediation works;

4. The parties advise that the Court can be satisfied that the Site will be made suitable for residential development; and

5. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. The site has frontage to Camden Valley Way, which is a classified road. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the site; and

1. Vehicular access to the development is not provided by Camden Valley Way. The amended DA proposed new local roads to serve the future residential development which will connect to the existing road network;

2. The amended DA is accompanied by a DA Acoustic Assessment which provides recommendations for the design and construction of the future dwellings to ameliorate potential traffic noise from Camden Valley Way; and

3. The parties are of the view that the Court can be satisfied that the amended DA will not have any impact on the safety and ongoing operation of Camden Valley Way.

Camden Growth Centre Precincts Development Control Plan 2023

22. The Camden Growth Centre Precincts Development Control Plan 2023 (the DCP) applies to the site. The DCP aims to provide planning, design and environmental objectives and controls against which the consent authority will assess development applications. The site is located in the Leppington Priority Precinct and Schedule 5 of the DCP applies.

23. Part 2 of the DCP establishes the precinct planning outcomes for development within the precinct, including flooding, salinity and soil management, site contamination and earthworks. Part 3 of the DCP sets out the relevant subdivision and road design development controls for development within the precinct.

24. Council identified a number of DCP non-compliance issues with the original DA which the parties advise have been addressed in the amended DA.

Conclusion

25. 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.

26. 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.

27. The Court notes:

1. That Camden Council, as the relevant consent authority, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000, has approved the application for an amendment to development application DA/2021/378/1 made on 16 November 2023 to rely on the documents and plans specified below (the amended development application):

Drawing No and Revision		Title	Prepared by	Date
Subdivision Plans
1	Drawing No. DA01 Revision 5	Site Analysis	The Bathla Group	23/5/23
	Drawing No. DA02 Revision 9	Subdivision Plan_Stage 01		11/10/23
	Drawing No.DA03 Revision 9	Subdivision Plan-Stage 02		11/10/23
	Drawing No. DA04 Revision 9	Building Envelope Plan_Stage 1		11/10/23
	Drawing No. DA05 Revision 1	Building Envelope Plan Detailed Site Plan		11/10/23
Engineering Plans
2	Plan 000 Revision H	Cover Sheet and Plan Index	Orion Consulting	23 October 2023
	Plan 001 Revision F	General Layout Plan, Notes & Legend		23 October 2023
	Plan 002 Revision F	Demolition & Tree Management Plan		23 October 2023
	Plan 003 Revision F	Site Regrading Plan		23 October 2023
	Plan 004 Revision E	Site Regrading Sections Sheet 01 of 02		23 October 2023
	Plan 005 Revision E	Site Regrading Sections Sheet 02 of 02		23 October 2023
	Plan 100 Revision F	Sediment & Erosion Control Plan		23 October 2023
	Plan 101 Revision A	Sediment & Erosion Control Notes & Details		22 March 2021
	Plan 200 Revision G	Engineering Plan		23 October 2023
	Plan 300 Revision B	Typical Road Cross Sections		4 September 2023
	Plan 301 Revision D	Road Long Sections Sheet 01 of 03		4 September 2023
	Plan 302 Revision D	Road Long Sections Sheet 02 of 03		4 September 2023
	Plan 303 Revision D	Road Long Sections Sheet 03 of 03		4 September 2023
	Plan 500 Revision F	Stormwater Catchment Plan		23 October 2023
	Plan 510 Revision D	Drainage Long Sections Sheet 01 of 02		23 October 2023
	Plan 511 Revision D	Drainage Long Sections Sheet 02 of 02		23 October 2023
	Plan 600 Revision F	Temporary Basin Plan Notes & Details		23 October 2023
	Plan 700 Revision F	Retaining Wall Plan		23 October 2023
	Plan 701 Revision F	Retaining Wall Long Sections & Detail Sheet 01 of 03		23 October 2023
	Plan 702 Revision D	Retaining Wall Long Sections & Detail Sheet 02 of 03		4 September 2023
	Plan 703 Revision C	Retaining Wall Long Sections & Detail Sheet 03 of 03		4 September 2023
	Plan 800 Revision G	Street Tree Plan		23 October 2023
	Plan 801 Revision B	Signage & Linemarking Plan		23 October 2023
Reports / documents
3	Integrated Water Cycle Management Report, Revision 4		Orion Consulting	23 October 2023
4	Endeavor Energy – connection offer		Endeavor Energy	9/9/22
5	Sydney Water – notice of requirements		Sydney Water	19/10/23
6	Turn paths – HRV Check		Orion	18/10/23

28. The Court orders:

1. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $13,000.

2. The appeal is upheld.

3. Development Application No DA/2021/378/1, as amended, for the remediation of land, demolition of existing structures, consolidation of 2 lots, staged Torrens title subdivision of land creating 60 residential lots, 1 RE1 zoned lot and 1 SP2 zoned lot in Stage 1, and 4 residential lots in Stage 2, construction of public roads and drainage works, landscaping and associated site works, is determined by the grant of development consent for land legally described as Lots 27 and 28 DP117857 and known as 1375 and 1383 Camden Valley Way, Leppington, NSW, 2179 subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 05 December 2023