Upg 251 Pty Ltd v Blacktown City Council

[2024] NSWLEC 1142

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 251 Pty Ltd v Blacktown City Council [2024] NSWLEC 1142

Hearing dates:

Conciliation Conference 20 February 2024

Date of orders:

26 March 2024

Decision date:

26 March 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA-22-00916, as amended, for the subdivision of land into eighty-one (81) lots comprising eighty (80) Torrens title lots and one (1) superlot over three stages, including construction of public roads, stormwater drainage and other associated site works on land legally described as Lot 9 and 10 in DP 30211 and Lot 100 in DP 1282519 (formerly Lot 47 in DP 30186), and known as 182, 184 and 194 Guntawong Road, Rouse Hill, NSW, 2155, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.47, 8.7, 8.10, 8.11, 8.14

Land and Environment Court Act 1979, ss 17, 34

National Parks and Wildlife Act 1974, ss 86, 87, 90

Water Management Act 2000, s 91

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.65, 9.3, 9.4, 9.5

State Environmental Planning Policy (Precincts - Central River City) 2021 ss 3.2, 3.26 Appendix 11 - ss 2.3, 2.6, 4.1AA, 4.1AB, 4.1B, 6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.48, 2.119

Category:

Principal judgment

Parties:

UPG 251 Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Podinic (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Bartier Perry Pty Limited (Respondent)

File Number(s):

2022/310383

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s Development Application (DA-22-000916) (Development Application). The Development Application, as lodged, sought consent for Torrens title subdivision of the land into 80 residential lots and one super lot over two stages, tree removal, construction of public roads, stormwater drainage, retaining walls and other associated site works at Lots 9 and 10 in Deposited Plan 30211 and Lot 100 in Deposited Plan 1282519 (formerly Lot 47 in Deposited Plan 30186) also known as 182-194 Guntawong Road, Rouse Hill (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application was lodged with the respondent on 4 August 2022.

4. The development the subject of the Development Application is integrated development within the meaning of s 4.46 of the EPA Act as approval is required under:

1. section 91 of the Water Management Act 2000 (NSW) (WM Act) as the proposed development is a “controlled activity” under s 91 of the WM Act; and

2. section 90 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) as Aboriginal cultural material was found within the Subject Land and the recommendations of the Aboriginal Cultural Heritage Assessment Report prepared by Apex Archaeology dated May 2022 (ACHAR) which formed part of the Development Application, required an Aboriginal heritage impact permit under s 90 of the NPW Act.

5. On 17 October 2022, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 28 March 2023, the matter was listed for hearing on 20 and 21 February 2024.

7. On 7 December 2023, the applicant was granted leave of the Court to formally amend the Development Application. The amended Development Application sought consent for the subdivision of land into 81 lots comprising 80 Torrens title lots and one super lot over three stages, including the construction of public roads, stormwater drainage and other associated site works including tree removal at the Subject Land. The Development Application was amended with the following material:

1. Amended subdivision plans, prepared by The Bathla Group, dated 15 November 2023;

2. Amended landscape plans, prepared by The Bathla Group, dated 17 November 2023;

3. Amended engineering plans, prepared by Barker Ryan Stewart, dated 24 November 2023;

4. Supplementary Statement of Environment Effects, prepared by Universal Property Group Pty Ltd, dated 27 November 2023 (SEE);

5. Aboricultural Development Impact Assessment Report, prepared by Birds Tree Consultancy, dated 13 November 2023;

6. Preliminary Site Investigation Report, prepared by Geotesta Pty Ltd, dated 20 March 2023;

7. Engineering SOFAC Response Letter, prepared by Barker Ryan Stewart, dated 14 March 2023;

8. Stormwater Management Report – Rev 5, prepared by Barker Ryan Stewart, dated 20 October 2023;

9. Dam Dewatering Plan, prepared by Cumberland Ecology, dated 9 March 2023;

10. Waste Management Plan, prepared by Universal Property Group Pty Ltd, dated 14 November 2023;

11. Traffic and Parking Assessment Report, prepared by Varga Traffic Planning Pty Ltd, dated 27 November 2023;

12. MUSIC Link Report, dated 20 October 2023,

13. (collectively, the December 2023 Amendments).

8. On 14 February 2024, the applicant was granted leave of the Court to further amend the Development Application with the following:

1. amended subdivision plans, prepared by The Bathla Group, dated 2 February 2024;

2. amended landscaping plans, prepared by The Bathla Group, dated 24 January 2024;

3. amended engineering plans, prepared by Barker Ryan Stewart, dated 1 February 2024;

4. Level 3 Odour Impact Assessment, prepared by SLR Consulting Australia, dated 25 January 2025; and

5. Stage 1 Preliminary and Stage 2 Detailed Site Investigation for 182 Guntawong Road, Rouse Hill, prepared by Sydney Environmental Group, dated 29 January 2024;

6. Dam Dewatering Assessment – 182 Guntawong Road, Rouse Hill, prepared by Sydney Environmental Group, dated 29 January 2024;

7. Unexpected Finds Protocol, prepared by Sydney Environmental Group, dated 29 January 2024;

8. Transgrid responses, prepared by Barker Ryan Stewart, dated 30 January and 6 February 2024; and

9. Transgrid Conditional Approval, dated 2 February 2024.

10. (collectively, the February 2024 Amendments).

9. The February 2024 Amendments, together with the December 2023 Amendments (to the extent they were not superseded by the February 2024 Amendments) now comprise the Amended Development Application.

10. Upon commencement of the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 20 February 2024, following which the hearing was vacated. I presided over the hearing (to the extent it was commenced) and conciliation conference.

11. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

12. 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.

Jurisdictional considerations

13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

14. The registered proprietors of Lots 9 and 10 in Deposited Plan 30211 provided consent to the lodging of development applications relating to the property in September 2021 as per the letters contained in Tab 2 of the Class 1 Application. The registered proprietors of Lot 100 in Deposited Plan 1282519 (formerly Lot 47 in Deposited Plan 30186) provided consent to the lodging of development applications relating to the property in July 2019 as per the letter contained in Tab 2 of the Class 1 Application. There was therefore consent to the Development Application when it was lodged with the respondent. Notably, Lot 100 in Deposited Plan 1282519 (also known as 182 Guntawong Road, Rouse Hill) is now relevantly owned by UPG 56 Pty Ltd, a related entity to the applicant.

Water Management Act 2000

15. Pursuant to s 91(2) of the WM Act, “a controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land”.

16. As the Amended Development Application seeks to dewater two dams, a controlled activity approval is required under s 91 of the WM Act.

17. The respondent referred the Development Application, as lodged, to the Department of Planning and Environment – Water (DPE - Water) for the purposes of ss 4.46 and 4.47 of the EPA Act and s 91(2) of the WM Act.

18. On 8 February 2023, DPE - Water issued general terms of approval (GTAs) in relation to the Development Application which are incorporated in the agreed conditions of consent (see Condition 2.8.1 and Annexure C).

National Parks and Wildlife Act 1974

19. Pursuant to ss 86 and 87 of the NPW Act, it is an offence to harm or desecrate Aboriginal objects or places without an Aboriginal heritage impact permit.

20. As Aboriginal cultural material was identified on the Subject Land, the ACHAR which accompanied the Development Application, recommended that an Aboriginal heritage impact permit be obtained pursuant to s 90 of the NPW Act.

21. The respondent referred the Development Application, as lodged, to the NSW Department of Planning and Environment – Heritage (DPE Heritage) for the purposes of ss 4.46 and 4.47 of the EPA Act and s 90 of the NPW Act.

22. On 23 February 2023, DPE Heritage issued general terms of approval in relation to the Development Application which are incorporated in the agreed conditions of consent (see Condition 2.7.1 and Annexure B).

State Environmental Planning Policy (Transport and Infrastructure) 2021 – Electricity transmission or distribution

23. For the purposes of s 2.48(1)(b) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP), the development the subject of the Development Application is proposed to be carried out within an easement for electricity purposes.

24. Pursuant to s 2.48(2) of the TISEPP, a consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out (being TransGrid in this case), inviting comments about potential safety risks, and take into consideration any response to the notice that is received. The Development Application was consequently referred to TransGrid pursuant to s 2.48 of the TISEPP.

25. On 2 February 2024, TransGrid provided its consent to an amended version of the Development Application, subject to conditions. On 19 February 2024, TransGrid confirmed that its grant of conditional approval remained unchanged with respect to the Amended Development Application. TransGrid’s conditions of consent are incorporated in the agreed conditions of consent (see Condition 2.6.1 and Annexure A).

State Environmental Planning Policy (Transport and Infrastructure) 2021 - Roads and Traffic

26. Section 2.119 of the TISEPP relevantly provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied of certain matters. As the Subject Land has a frontage to Clarke Street, being a classified road, s 2.119 of the TISEPP applies to the proposed development.

27. The parties agree that:

1. vehicular access to the development is provided by a number of new local roads through the Subject Land which align with adjoining developments;

2. access to the development is also provided via Guntawong Road;

3. the Amended Development Application will not have any impact on the safety and ongoing operation of Clarke Street;

4. there will be no adverse affect on the nature, volume or frequency of vehicles using Clarke Street as a result of the Amended Development Application; and

5. there will be no additional emissions of smoke or dust as a result of the Amended Development Application.

28. Further, Transport for New South Wales has confirmed that the proposed development will have a negligible impact on the arterial road network.

29. Based on the above, I am satisfied of the matters listed in s 2.119 of the TISEPP such that consent may be granted to the Amended Development Application.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. 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

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

31. The Amended Development Application relies on the following reports:

1. Preliminary Site Investigation Report for 184-194 Guntawong Road, prepared by Geotesta, dated 20 March 2023;

2. Stage 1 Preliminary & Stage 2 Detailed Site Investigation for 182 Guntawong Road, prepared by Sydney Environmental Group, dated 29 January 2024; and

3. Dam Dewatering Assessment, prepared by Sydney Environmental Group, dated 29 January 2024; and

4. Unexpected Finds Protocol, prepared by Sydney Environmental Group, dated 29 January 2024,

5. (collectively, the Contamination Reports).

32. Based on the conclusions and recommendations of the Contamination Reports, the Subject Land is considered suitable for its proposed residential land use, provided further data gap assessments are carried out following the demolition of the existing structures on the Subject Land. The agreed conditions of consent require these data gap assessments to be carried out and also require compliance with an Unexpected Finds Protocol should any contamination be found during works (see Condition 11).

33. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

34. Having regard to the Contamination Reports and agreed conditions of consent (in particular Conditions 10.8 and 11), I am satisfied that the Subject Land is, or will be, suitable for its proposed residential land use and that the requirements of s 4.6 of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

35. Former Chapter 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the proposed development. This is because:

1. Although Chapter 9 of the Biodiversity SEPP was repealed on 21 November 2022 through the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP), s 6.65 of the Biodiversity SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP. The Development Application was lodged on 4 August 2022, being prior to the commencement of the Water Catchments Amendment SEPP. As the Development Application has not yet been determined, Ch 9 of the Biodiversity SEPP continues to apply to the Development Application.

2. The proposed development the subject of the Amended Development Application is located in the Blacktown local government area (cl 9.1 of the Biodiversity SEPP).

36. Section 9.3 of the Biodiversity SEPP requires the consent authority to take into consideration the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP in determining a development application on land to which the Chapter applies.

37. The parties agree that the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP have been considered in the following documents accompanying the Amended Development Application:

1. SEE;

2. Engineering plans prepared by Barker Ryan Stewart, dated 1 February 2024;

3. Stormwater Management Report prepared by Braker Ryan Stewart, dated 20 October 2023;

4. Preliminary Site Investigation Report for 184-194 Guntawong Road, prepared by Geotesta, dated 20 March 2023;

5. Stage 1 Preliminary & Stage 2 Detailed Site Investigation for 182 Guntawong Road, prepared by Sydney Environmental Group, dated 29 January 2024; and

6. Dam Dewatering Assessment, prepared by Sydney Environmental Group, dated 29 January 2024;

7. Dam Dewatering Assessment, prepared by Cumberland Ecology, dated 9 March 2023;

8. Aboriginal Archaeological Due Diligence Assessment for 182 Guntawong Road, prepared by Dominic Steele Consulting Archaeology, dated 30 September 2019;

9. ACHAR;

10. Geotechnical and Salinity Investigation Report for 182 Guntawong Road, prepared by Geotesta, dated 2 October 2019; and

11. Geotechnical Site Investigation Report for 184-194 Guntawong Road, prepared by Geotesta, dated 7 April 2022.

38. In determining the Amended Development Application, and having regard to the documents listed above, I am satisfied that the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP have been considered for the purposes of s 9.3.

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

39. In accordance with the definition set out in s 3.2 of the State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City Precincts SEPP), part of the Subject Land is mapped as “flood prone and major creeks land” on the North West Growth Centre Development Control Map. Pursuant to s 3.26 of the Central River Precincts SEPP, consent is not to be granted to the carrying out of development on land so mapped unless the matters in s 3.26(2) are taken into consideration.

40. In determining the Amended Development Application, I have considered the matters set out in s 3.26(2) of the Central River Precincts SEPP, including the fact that the parties agree that:

1. The development has been undertaken in accordance with the respondent’s On Site Stormwater Detention Policy (OSD Policy) which has been developed to ensure post development flows are reduced to at least the pre development rates. Any stormwater discharges from the Subject Land will therefore not adversely affect flood behaviour and not result in detrimental increases in the potential flood affectation of other development or properties. The development has been designed in a way that does not negatively alter its conveyance, with flows being captured and conveyed through the Subject Land in a manner that is safe and controlled.

2. The respondent’s OSD Policy and Water Sensitive Urban Design Policy (WSUD Policy) requires the low flows discharged from a compliant drainage system to consider stream forming flows to prevent erosion of downstream drainage systems and so is considered in the proposal. The design also includes the upgrade of the drainage system in Clarke Steet with a piped drainage system draining from the Subject Land into the culvert located in the Clarke Street low point, so reducing overland flows draining from the Subject Land. Any overland flow that occurs is provided for with an overland flow system that complies with the respondent’s safe velocity-depth product.

1. The drainage and road system proposed to replace the depression within the Subject Land has been designed to safely convey stormwater through the Subject Land up to the 1% AEP storm event. Any overland flow will be conveyed in accordance with the respondent’s velocity-dept requirements.

2. The development has been designed with on-site detention to limit post developed flows and therefore any impact on the floodplain environment. The respondent’s OSD Policy and WSUD Policy requires the low flows discharged from a compliant drainage system to consider stream forming flows to prevent erosion of downstream drainage systems and so is considered in the proposal.

3. The drainage and road system of the development has been designed to safely convey stormwater through the Subject Land up to the 1% AEP storm event. No unsustainable social or economic costs will be experienced as a result of the development.

4. The floodway will be significantly altered due to the rezoning and redevelopment of the area. The floodway is substantially reduced with the provision of a piped drainage line along Road 2 which connects into the respondent’s s7.11 Hambledon Road extension.

5. Any overland flows have been designed to be safely conveyed within the development up to the 1% AEP storm event.

6. The Amended Development Application includes cut and fill as shown on the amended engineering plans. There will be no adverse impact on the values identified in s 3.26(2)(h)(i)-(v) of the Central River Precincts SEPP as follows:

1. The existing drainage patterns and soil stability generally remains the same and the potential for erosion is reduced as a result of the development.

2. Any excavation or filling of the Subject Land enables the redevelopment of the land, not only on the Subject Land but also those properties around it.

3. No adverse impacts will occur on existing and likely amenity of adjoining properties.

4. Based on the investigations in the Due Diligence Aboriginal Archaeological Assessment for 182 Guntawong Road, prepared by Dominic Steele Consulting Archaeology dated 30 September 2019, no relics have been identified at 182 Guntawong Road. Based on the investigations in the ACHAR, Aboriginal cultural material is present at 184-194 Guntawong Road. As set out above at [22], DPE-Heritage issued general terms of approval on 23 February 2023 that have been incorporated into the agreed conditions of consent. I am therefore satisfied that if any relics are encountered during construction, there are appropriate requirements and mitigation measures in place to minimise disturbance to such relics.

5. Soil and water management plans will be implemented during construction. Additionally, water sensitive urban design measures have been implemented for the development in accordance with the respondent’s requirements.

41. The Site is zoned R2 Low Density Residential, R3 Medium Density Residential and SP2 Infrastructure (Classified Road) under the Blacktown Growth Centres Precinct Plan (Precinct Plan) contained in Appendix 11 of the Central River City Precincts SEPP. Accordingly, the development the subject of the Amended Development Application is permitted with consent under the Precinct Plan.

42. Pursuant to s 2.3 of the Precinct Plan, I have had regard to the R2, R3 and SP2 zone objectives which are extracted below:

Zone R2 Low Density Residential

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

• To support the well being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

Zone R3 Medium Density Residential

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.

Zone SP2 Infrastructure

• To provide for infrastructure related uses.

• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

43. The parties agree that the Amended Development Application is consistent with the objectives of the respective R2, R3 and SP2 zones as they apply to the Amended Development Application.

44. Subdivision works are permissible with consent pursuant to s 2.6 of the Precinct Plan.

45. Section 4.1AB of the Precinct Plan sets out minimum lot sizes for residential development in the R2 Low Density Residential and R3 Medium Density Residential zones. Pursuant to s 4.1AB(3)(b), the minimum lot size for a dwelling house is 300m² if the dwelling density (per hectare) is shown on the “Residential Density Map” for the site is 15, 25 or 35 dwellings. The R2 zoned portion of the Subject Land has a dwelling density (per hectare) of 15 dwellings and the R3 zoned portion of the Subject Land has a dwelling density (per hectare) of 25 dwellings.

46. Therefore, the Amended Development Application complies with this provision for those proposed lots that are 300m² or larger.

47. In relation to the proposed lots that are less than 300m², the parties agree that s 4.1AA of the Precinct Plan applies. Section 4.1AA of the Precinct Plan relevantly provides that development consent may be granted to the subdivision of land in land zoned R2 or R3 resulting in the creation of a lot that has an area less than 300m² (but not less than 225m²), if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. The Amended Development Application is accompanied by building envelope plans which confirm that those lots are capable of containing a dwelling house which complies with relevant controls.

48. Pursuant to section 4.1B of the Precinct Plan, the minimum dwelling density (per hectare) for the R2 zoned portion of the Subject Land is 15 dwellings. The Amended Development Application proposes a dwelling density of 17.4 dwellings per hectare in the R2 zone and therefore complies with this section.

49. Pursuant to s 6.1 of the Precinct Plan, a consent authority must not grant development consent to development 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.

50. The parties agree that the development the subject of the Amended Development Application will be connected to all essential services as detailed in the SEE and subject to the Agreed Conditions.

51. Having regard to the SEE and Agreed Conditions, I am satisfied that the public utility infrastructure essential for the proposed development the subject of the Amended Development Application is available or adequate arrangements have been made to make that infrastructure available when required in accordance with s 6.1 of the Precinct Plan.

Remaining matters in section 4.15(1) of the EPA Act

52. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act. Matters relevant to subsections (b), (c) and (e) are considered generally in the SEE.

53. In relation to s 4.15(d), the Development Application, as lodged, was notified between 12 October 2022 and 11 November 2022 in accordance with the respondent’s Community Engagement Strategy and Community Participation Plan 2022-2024. One submission was received during the notification period. The matters raised in this submission primarily related to ensuring that any development approved on the Subject Land was appropriately coordinated with development already approved on the adjoining site and that relevant landowner’s consent was obtained for any works not contained within the Subject Land.

54. The authors of the relevant submission addressed the Court at the on-site view associated with the hearing.

55. I am satisfied that the written and oral submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.

Conclusion

56. 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.

57. 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.

Orders

58. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA-22-00916, as amended, for the subdivision of land into eighty-one (81) lots comprising eighty (80) Torrens title lots and one (1) superlot over three stages, including construction of public roads, stormwater drainage and other associated site works on land legally described as Lot 9 and 10 in DP 30211 and Lot 100 in DP 1282519 (formerly Lot 47 in DP 30186), and known as 182, 184 and 194 Guntawong Road, Rouse Hill, NSW, 2155, is determined by the grant of development consent subject to the conditions at Annexure A.

N Targett

Acting Commissioner of the Court

Annexure A

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Decision last updated: 26 March 2024