Universal Property Group Pty Ltd v Penrith City Council

[2025] NSWLEC 1324

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Penrith City Council [2025] NSWLEC 1324

Hearing dates:

Conciliation conference on 1 May 2025

Date of orders:

09 May 2025

Decision date:

09 May 2025

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The Applicant is granted leave to file with the Court the Amended Development Application as referred to at [42].

(2) The Applicant is to pay those costs of the Respondent that are thrown away as a result of the Applicant being allowed to file the Amended Development Application referred as agreed or assessed.

(3) The Appeal is upheld.

(4) Development Application No. DA-23/0763, as amended on 6 March 2025, 22 April 2025 and 1 May 2025 for the construction of Multi Dwelling Town House Development consisting of twenty-three (23) town houses with associated parking, landscaping and tree removal, drainage, road and associated works and Strata Subdivision on land legally described as Lot 6 in DP882697 and also known as 22-32 Ainsbury Road, St Marys NSW 2760, Lot 1 DP739330 also known as 34 Hall Street, St Marys NSW 2760 and part of the land currently known as Ainsbury Road being the land identified in purple on drawing No. DA11 Revision 8 dated 30 April 2025 prepared by the Bathla Group, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – land subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Crown Land Management Act 2016

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Penrith Local Environmental Plan 2010, cll 5.21, 5.23, 7.5, 7.7, 7.30

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7,6.8, 6.9, 6.10, Div 2

State Environmental Planning Policy (Resilience and Hazard) 2021, Ch 4, s 4.6

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
M Staunton (Applicant)
A Stafford (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Dentons (Respondent)

File Number(s):

2024/115551

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal, lodged by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), concerns the refusal by Penrith City Council (Council) of development application number DA-23/0763 (DA). The DA seeks consent for the construction of multi dwelling housing consisting of twenty-three (23) town houses with associated parking, landscaping and tree removal, drainage, road and associated works and strata subdivision.

2. The land upon which development would occur (site) is all within the suburb of St Marys and involves three land holdings. Because of certain points discussed later I need to outline certain particulars of the different holdings, as follows:

1. Lot 6 in DP882697 and also known as 22-32 Ainsbury Road - the proposed housing development would principally occur on this land.

2. Part of land currently known as Ainsbury Road and comprising Crown land - future public road access and certain services would be provided via this land.

3. Lot 1 DP739330 also known as 34 Hall Street and owned by the (NSW) Planning Ministerial Corporation (PMC) - involving land west of the proposed housing development where some ancillary development would occur and upon which a flood levee is now located.

Conciliation and agreement between the parties

3. After significant prior liaison between the parties (and a number of amendments to the DA), at the parties’ request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 May 2025, and at which I presided. At the conference, the parties provided evidence of, and explained, a signed agreement confirming the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, to address various contentions, and subject to conditions. A bundle of documents handed to the Court during conciliation and marked EJ-4 provided a series of relevant updated documents.

4. 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 one that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63],[65]). It is my finding that there are no such constraints. But there are certain queries, relating to jurisdiction, which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed statemement of jurisdictional prerequisites (ASJP) received by the Court on 1 May 2025.

Jurisdiction

Penrith Local Environmental Plan 2010

Permissibility

5. Having regard to the three land holdings referenced above, Lot 6 in DP882697 is zoned ‘R3 Medium Density Residential’ under Penrith Local Environmental Plan 2010 (PLEP). Multi dwelling housing is permitted with consent in the R3 zone. Both the relevant Crown land holding and Lot 1 DP739330 are zoned ‘RE1 Public Recreation’. Roads, flood mitigation and relevant associated works are permitted within this zone. The parties have drawn my attention to the zone objectives in relation to each of these zones and indicated their agreed view that the proposal is consistent with these objectives.

6. The parties indicate no development standard is contravened with the proposal.

Clause 5.21 - flood planning

7. Clause 5.21 relates to flood planning. Given that the site has been identified as within a flood planning area, this clause applies. Certain matters are listed for consideration and there are also requirements for findings of satisfaction in relation to other nominated matters. In ASJP the parties indicated that they have undertaken the relevant consideration and that the court can be satisfied, relevantly, in relation to each of the matters listed at cl 5.21(2), which are as follows:

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

8. In ASJP the parties reference the relevant technical information submitted with the DA in consideration of these matters including a stormwater drainage strategy, flood assessment report, TUFLOW model and traffic report. The conclusion is that (ASJP par 40):

the Site is considered to be low hazard flood fringe and the extended Ainsbury Road adjoining the Site is considered to be low hazard floodway, with flood modelling indicating the Proposed Development would cause no adverse flooding consequences, in relation to Clause 5.21(2)(a);

the Proposed Development would not negatively affect flood behaviour to impact other properties or development, in relation to Clause 5.21(2)(b);

the Site can be safely and efficiently evacuated to a local evacuation centre via road access and there will be adequate warning time of approximately 20-30 hours for such an evacuation during a flooding event, in relation to Clauses 5.21(2)(c)-(d) and Clause 5.21(3)(c);

the proposed stormwater drainage system would mitigate any risk of erosion in the 1% AEP event to not adversely impact the local environment, in relation to Clause 5.21(2)(e);

the proposed Finished Floor Levels of the proposed units will be above the peak flood level, which include an allowance for 0.5m freeboard for South Creek and overland flow flooding event and 0.3m freeboard for the most extreme peak 1% AEP (Climate Change High 2090) levels, in relation to Clauses 5.21(3)(a) and 5.21(3)(d); and

the Proposed Development is appropriate for the local floodplain, in relation to Clause 5.21(3)(b).

9. Based on this advice of the parties, I can accept that due consideration of relevant matters has occurred and I am satisfied in respect to each of the matters is listed at subcl 5.21(2).

Clause 5.23 - public bushland

10. PLEP adopts a similarly structured approach to the above in its cl 5.23 relating to public bushland protection. The parties advise of the various specialist reports involved and their consideration of certain matters nominated at cl 5.23(7). It is the parties’ view that the court can be satisfied in relation to the following matters as nominated in subcl 5.23(3):

(a) the disturbance of the bushland is essential for a purpose in the public interest,

(b) there is no reasonable alternative to the disturbance,

(c) the development minimises the amount of bushland to be disturbed,

(d) the development includes measures to remediate the disturbed bushland.

11. The parties summarise the reasoning behind their conclusions on this point as follows (ASJP par 47):

a.   any proposed disturbance of the bushland (tree removal) is essential for a purpose in the public interest, being for the construction of a public road to provide access to the Proposed Development and the surrounding public recreational area and developments to the west;

b.   there is no reasonable alternative to the disturbance due to the conflict of those trees’ locations and the proposed public road and associated civil works;

c.   the Proposed Development will minimise the amount of bushland to be disturbed based on the recommended tree protection measures for trees proposed to be retained as assessed in the Arborist Report; and

d.   the Proposed Development includes measures to remediate the disturbed bushland based on the plantings shown on the landscape plans along the completed public road.

12. Based on this advice of the parties, I can accept that due consideration of relevant matters has occurred and I am satisfied in respect to each of the matters as listed at subcl 5.23(3).

Clause 7.5 – Protection of scenic character and landscape values

13. The site has been identified as land with scenic and landscape value. In turn under subcl 7.5(3):

Development consent must not be granted for any development on land to which this clause applies unless the consent authority is satisfied that measures will be taken, including in relation to the location and design of the development, to minimise the visual impact of the development from major roads and other public places.

14. The parties are satisfied in relation to this provision referring me to the architectural and landscape plans accompanying the application before the court, which are seen to demonstrate satisfaction of these requirements. I accept this advice and am satisfied with respect to subcl 7.5(3).

Clause 7.7 – Servicing

15. Satisfaction is required in relation to the following matters under subcl 7.7(2): 

(a)  the development will be connected to a reticulated water supply, if required by the consent authority, and

(b)  the development will have adequate facilities for the removal and disposal of sewage, and

…

(d)  the need for public amenities or public services has been or will be met.

16. The parties have referred me to correspondence from utilities bodies indicating the availability of services. I’m also aware of councils planning for more general public amenities and services. I am satisfied with respect to subcl 7.7(2).

Clause 7.30 (Urban heat)

17. Under subclause 7.30(3), on this site development consent must not be granted to development unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect that:

(a) maximise green infrastructure, and

(b) retain water in the landscape, and

(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d) use building, paving and other materials that minimise heat impacts, and

(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

18. The parties are of the view that the court can be satisfied with respect to the matters at subclause 7.30(3). The reasoning behind the views adopted by the parties are summarised as follows (ASJP par 66):

a.   the architectural plans (see Tab 1 of Exhibit EJF-4) and Colour Schedule | Materials and Finishes (see Tab 1 of Exhibit EJF-3) show the proposed dwellings with appropriate design measures including roof materials with the appropriate Solar Reflectance Index and AC units appropriated located and orientated in the private open spaces to ensure the thermal performance of the Proposed Development achieves a high degree of passive cooling and the proposed materials minimise heat impacts, in relation to Clause 7.30(3)(c) and (d);

b.   the landscape plans (see Tab 2 of Exhibit EJF-4) show landscape design for the Proposed Development presents maximised green infrastructure for the Site, and facilitates retention of water in the proposed landscape and passive cooling, and reduces reliance on mechanical ventilation and cooling systems to conserve energy and to minimise heat sources, in relation to Clause 7.30(3)(a), (b) and (e);

c.   the assessment letter by Think Planners dated 3 April 2025 for the Address of Clause 7.30: Urban Heat Island Effect, which assessed the above plans as satisfactorily addressing Clause 7.30(3) (see Tab 4 of Exhibit EJF-3).

19. I accept this advice of the parties and am satisfied with respect to the matters at subcl 7.30(3).

State Environmental Planning Policy (Resilience and Hazard) 2021

20. Chapter 4 relates to remediation of land, with s 4.6 requiring a consent authority to consider whether the land is contaminated, and if the land is contaminated ensure that it is satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted. A Preliminary Site Investigation Report (PSI) dated 6 March 2023 (see Tab 12 of the Class 1 Application) accompanies the DA. The PSI concludes that soil sampling and analysis indicated a low risk of soil contamination, and the site is suitable for the Proposed Development.

21. I am satisfied that the site is or will be made suitable for the proposed use, noting that agreed Condition 47 gives effect to the recommendations made by the PSI in relation to any unexpected finds occurring during site excavation and earthworks. I am satisfied that the requirements of s 4.6 have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. The site is identified within the Hawkesbury Nepean Catchment, a regulated catchment under Part 6.2 of Chapter 6 and therefore the DA is subject to relevant provisions Div 2 which raise jurisdictional tests.

23. Section 6.6 is concerned with water quality and quantity. Consent cannot be granted unless the consent authority is satisfied the development ensures:

(a)    the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

(b)    the impact on water flow in a natural waterbody will be minimised.'

24. The parties believe that the Court should find these requirements are satisfied. The parties point out various particulars of the DA’s stormwater management scheme which have satisfied Council’s technical experts, including (ASJP par 71):

(a) stormwater controls including 5000L volume rainwater harvesting tanks for each dwelling's roof runoff be directed through the rainwater tank before discharging into onsite detention tank;

(b) Ocean Protect GPT Screen node for all pits throughout the development area and a 22m2 bio-retention basin on the Site prior to any proposed discharge into the street network;

(c) a GPT at the end of the proposed Ainsbury Road cul-de-sac.

25. Reference is also made to the system for reduction of stormwater outflows through rainwater reuse tanking.

26. On the basis of the parties’ advice and technical analysis behind it, I am satisfied in relation to both subs 6.6(2)(a) and (b).

27. Section 6.7 is concerned with aquatic ecology. Subsection 6.7(1) raises a series of considerations which the parties indicate have been relevantly taken into account. Subsection 6.7(2) provides a series of related points with which a consent authority must be satisfied prior to the grant of consent. These points are as follows:

(a)  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,

(b)  the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

(c) if a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994 is required in relation to the clearing of riparian vegetation—the approval or permit has been obtained,

(d)  the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised,

(e)  the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

28. In their ASJP, the parties outline the technical material behind their conclusions that the DA (ASJP par 77):

“a.   will not have any adverse impact on terrestrial, aquatic or migratory animals or vegetation, or on wetlands that are not in the coastal wetlands and littoral rainforest area, or on aquatic reserves,

b.   will not involve the clearing of riparian vegetation,

c.   is not required to include adequate safeguards and rehabilitation measures to protect aquatic ecology, and

d. does not require a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994.”

29. I accept the parties' advice and technical analysis behind it on this matter. In turn, I am satisfied in relation to the matters at subs 6.7(2).

30. Section 6.8 is concerned with flooding. Subsection 6.8(1) requires consideration of the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems. Subsection 6.8(2) identifies related points with which a consent authority must be satisfied prior to the grant of consent. These points are as follows:

Development consent must not be granted to development on flood liable land in a regulated catchment unless the consent authority is satisfied the development will not—

(a) 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, or

(b) have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

31. The parties advise the Court of their consideration of the matter and that the Court can be satisfied with respect to these points based on the agreed works relating to the effective operation of the existing flood levee and the water quality and quantity management system embodied in the application. I accept this advice and am satisfied with respect to subs 6.8(2).

31. In relation to s 6.9, concerned with recreation and public access, a similar statutory framing is provided. The parties advise of their consideration of the relevant matters and that the Court can be satisfied with the following matters listed at s 6.9(2):

(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following—

(a) the development will maintain or improve public access to and from natural waterbodies for recreational purposes, including fishing, swimming and boating, without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation,

(b) new or existing points of public access between natural waterbodies and the site of the development will be stable and safe,

(c) if land forming part of the foreshore of a natural waterbody will be made available for public access as a result of the development but is not in public ownership—public access to and use of the land will be safeguarded.

33. I accept this advice. The provisioning for improved public access to and from nearby natural waterbodies, and no harm to existing arrangements, is clear with the proposed extension of Ainsbury Road towards the existing flood levee. I am satisfied with respect to subs 6.9(2).

Owners’ consent

34. As indicated above, the development involves three separate land holdings. Owners consent for the holding upon which the future housing development would occur (Lot 6 in DP 882697) is explained at ASJP, par 6.

35. The proposed development also involves provision of public road access along a western extension of Crown land occupied by the existing carriageway known as Ainsbury Road. I note that owner’s consent in relation to the lodgement of the DA in respect of this land has been received from the delegate of the Minister administering the Crown Land Management Act 2016, dated 28 April 2025 (Tab 5 EJ-4).

36. The parties’ have explained how certain particulars relating to: (1) making this land a public road, (2) the future transfer of the land to Council and (3) the actual road construction; are attended to by way of deferred commencement conditions. The parties have explained how these particulars attend to the varying interest of the NSW Crown, Council and the applicant. This has occured in a manner satisfactory to the parties, and to the extent that it is relevant to my decision, are not discordant with the particulars of the owners consent letter, provided to the Court. One aspect of these deferred commencement conditions requires executation of a planning agreement between the applicant and Council under s 7.4 of the EPA Act. The parties advise and I accept that there is power to impose such a condition in the circumstances, as the planning agreement is for a relevant public purpose (relevant to s 7.4(2) of the EPA Act) and, under the proposed condition, would need to accord with the letter of offer from the applicant dated 1 May 2025 (relevant to s 7.7(3) of the EPA Act).

37. I will also mention briefly an issue relating to the flood levee to the immediate west of the land upon which the housing development would principally occur (ie Lot 6 in DP 882697). Certain works are proposed on this land (Lot 1 DP 739330) associated with the relationship between the housing development and the levee function. As indicated above, Lot 1 DP 739330 is owned by the (NSW) Planning Ministerial Corporation (PMC). Again there is correspondence on behalf of the PMC granting owner’s consent, dated 30 April 2025 (Tab 6 to EJ-4), with certain uncontroversial requests relating to future maintenance works including access arrangements. The parties have explained an intention to enter into a deed of agreement, or other arrangement satisfactory to the PMC, addressing these matters. An agreed deferred commencement condition has been adopted to set a framework for this to occur.

38. These factors do not raise any concerns for me in my function here. I am satisfied that the jurisdictional requirement for owners consent in relation to the land the subject of the development has been satisfied.

Other considerations

39. The parties advise that required notification has been undertaken and one submission had been received, relating to traffic which had been considered.

Conclusion

40. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

41. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the proposal generally.

Notation

42. The Court notes that Penrith City Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application will DA23/0763 to rely on the documents listed below:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. DA00, Rev 8	Cover Page	The Bathla Group	30 April 2025
	Drawing No. DA01, Rev 8	Site Analysis		30 April 2025
	Drawing No. DA02, Rev 8	Site Plan		30 April 2025
	Drawing No. DA03, Rev 8	Ground Floor Plan		30 April 2025
	Drawing No. DA04, Rev 8	First Floor Plan		30 April 2025
	Drawing No. DA05, Rev 8	Elevations & Sections		30 April 2025
	Drawing No. DA06, Rev 8	Type Plan		30 April 2025
	Drawing No. DA07, Rev 8	Shadow Analysis		30 April 2025
	Drawing No. DA08, Rev 8	Shadow Analysis		30 April 2025
	Drawing No. DA09, Rev 8	Shadow Calculation		30 April 2025
	Drawing No. DA10, Rev 8	Landscape Calculation		30 April 2025
	Drawing No. DA11, Rev 8	Land Dedication Plan		30 April 2025
	Drawing No. DA12, Rev 8	Solar Analysis for Living and Rumpus Areas – 9.0 AM		30 April 2025
	Drawing No. DA13, Rev 8	Solar Analysis for Living and Rumpus Areas – 10.0 AM		30 April 2025
	Drawing No. DA14, Rev 8	Solar Analysis for Living and Rumpus Areas – 11.0 AM		30 April 2025
	Drawing No. DA15, Rev 8	Solar Analysis for Living and Rumpus Areas – 12.0 PM		30 April 2025
	Drawing No. DA16, Rev 8	Solar Analysis for Living and Rumpus Areas – 1.0 PM		30 April 2025
	Drawing No. DA17, Rev 8	Solar Analysis for Living and Rumpus Areas – 2.0 PM		30 April 2025
	Drawing No. DA18, Rev 8	Solar Analysis for Living and Rumpus Areas – 3.0 PM		30 April 2025
	Drawing No. DA19, Rev 8	Solar Analysis for Living / Rumpus		30 April 2025
Landscape Plans
2	Drawing No. 01, Issue F	Landscape Concept Site Plan	Outside In Design Group	30 April 2025
	Drawing No. 02, Issue F	Landscape Concept Sheet 2		30 April 2025
	Drawing No. 03, Issue F	Landscape Concept Sheet 3		30 April 2025
	Drawing No. 04, Issue F	Landscape Concept Sheet 4		30 April 2025
	Drawing No. 05, Issue F	Landscape Concept Sheet 5		30 April 2025
	Drawing No. L - 06, Issue F	Plant Schedule + Planting Details		30 April 2025
Civil Engineering Plans
3	Drawing No. DA-00, Rev 6	Cover Sheet & Drawing Schedule	High Definition West	30 April 2025
	Drawing No. DA-02, Rev 6	Proposed Site and Ainsbury Road Extension - Sheet 1 of 2		30 April 2025
	Drawing No. DA-03, Rev 6	Proposed Site and Ainsbury Road Extension - Sheet 2 of 2		30 April 2025
	Drawing No. DA-04, Rev 6	Site Cut Fill Layout		30 April 2025
	Drawing No. DA-11, Rev 6	Drainage Catchment Plan		30 April 2025
	Drawing No. DA-12, Rev 6	Drainage Network Plan		30 April 2025
	Drawing No. DA-14, Rev 6	Stormwater Longitudinal Sections - Sheet 2 of 2		30 April 2025
	Drawing No. DA-16, Rev 6	Turning Paths		30 April 2025
	Drawing No. DA-17, Rev 6	Erosion and Sedimentation Control Plan		30 April 2025
	Drawing No. DA-F1, Rev 6	Concept Drainage IAD Pit Levels		30 April 2025
	Drawing No. F1, Rev 1	Proposed Land Dedication		24 April 2025

Reports / documents
4	Bushfire Hazard Assessment Report (Ref No.23.05.151) - Addendum 30.04.2025	Control Line Consulting	30 April 2025
5	Consent of Owner for lodgement of a Development Application (Ref. 22/06289#02, LOC No.677232)	Department of Planning, Housing and Infrastructure - Crown Lands and Public Spaces	28 April 2025
6	Landowner’s consent to lodgement of DA23/0763 (Ref. M/23501)	Department of Planning, Housing and Infrastructure - Office of Strategic Lands	30 April 2025
7	BASIX Certificate No.1793338M_02	SLR Consulting Pty Ltd	1 May 2025
8	Embodied Emissions Statement (Ref. 610.032809.00001, Revision v1.0)	SLR Consulting Pty Ltd	28 April 2025
9	Notice of Anticipated Requirements for Section 73 Subdivider Compliance Certificate (Case No.222346)	Sydney Water	18 March 2025
10	Letter of Offer	Bathla Group / Universal Property Group Pty Limited	1 May 2025

43. The Court also notes the agreed advice of the parties that: (1) the planning agreement required by deferred commencement condition requires a bond to secure the performance of the road works the subject of that agreement, and (2) that any bond that has already been paid to Council under the planning agreement is to be set off in satisfaction of any bond required for the purpose of the s 138 Roads Act1993 approval.

Orders

44. The Court orders:

1. The Applicant is granted leave to file with the Court the Amended Development Application as referred to at [42].

2. The Applicant is to pay those costs of the Respondent that are thrown away as a result of the Applicant being allowed to file the Amended Development Application referred as agreed or assessed.

3. The Appeal is upheld.

4. Development Application No. DA-23/0763, as amended on 6 March 2025, 22 April 2025 and 1 May 2025 for the construction of Multi Dwelling Town House Development consisting of twenty-three (23) town houses with associated parking, landscaping and tree removal, drainage, road and associated works and Strata Subdivision on land legally described as Lot 6 in DP882697 and also known as 22-32 Ainsbury Road, St Marys NSW 2760, Lot 1 DP739330 also known as 34 Hall Street, St Marys NSW 2760 and part of the land currently known as Ainsbury Road being the land identified in purple on drawing No. DA11 Revision 8 dated 30 April 2025 prepared by the Bathla Group, is determined by the grant of development consent subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court 

Annexure A (406 KB, pdf)

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Decision last updated: 09 May 2025