WRB Pty Limited v Blacktown City Council

[2025] NSWLEC 1248

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

WRB Pty Limited v Blacktown City Council [2025] NSWLEC 1248

Hearing dates:

Conciliation conferences on 2 and 25 October, 19 and 28 November, 5 and 20 December 2024, 29 January and 5 and 7 February 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application No. DA-23-01380, as amended, for the demolition of existing structures, staged residential subdivision to create 10 Torrens Title lots and 42 Community title lots including private road, removal of trees, civil infrastructure and road construction, landscape works, retaining walls and utilities servicing on land legally described as Lot 1 in DP787607, Lot 29 in DP 787387 and Lot 1 in DP135591 and known as 171 Walters Road, Blacktown and Lot 1 DP 1144920 and known as 175 Walters Road, Blacktown, subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7, ss 6.8, 7.7, 7.13

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.17, 4.46, 8.7,8.15, Sch 1, s 7

Environmental Protection and Biodiversity Conservation Act 1999

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Blacktown Local Environmental Plan 2015 cll 2.2, 2.3, 2.6, 2.7, 4.1, 4.1AA, 6.2

Environmental Planning and Assessment Regulation 2021, s 38

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

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

Texts Cited:

Blacktown Community Engagement Strategy and Community Participation Plan 2024

Blacktown Development Control Plan 2015

Category:

Principal judgment

Parties:

WRB Pty Limited (ACN 666 728 963) (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
T To (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
McPherson Kelley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2024/115544

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 and s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA-23-01380 (the DA) for consent for demolition of all structures, tree removal, construction of roads, drainage and landscaping works, and Torrens title subdivision to create 47 lots at 171 Walters Road, Blacktown, NSW, 2148. The site is legally identified as Lot 1 in Deposited Plan 135591, Lot 1 in Deposited Plan 787607, and Lot 29 in DP787387 (the site).

2. Works are also proposed to be carried out on Lot 1 DP1144920, known as 175 Walters Road, Blacktown. This land is not owned by the Applicant.

3. The DA was lodged with the Respondent on 31 October 2023.

4. On 6 May 2024, the Applicant filed Exhibit EJF-2 with the Court the following plans and documents which comprise the amended DA:

1. Survey Plans (Amendment B) prepared by East Coast Positioning Surveyors dated 8 December 2023;

2. Engineering Plans (Revision G) prepared by the Orion Group;

3. Building Envelope Plan (Revision B) prepared by MHM Construction Group dated 30 April 2024;

4. Amended Statement of Environmental Effects prepared by the Orion Group dated 4 April 2024 (Amended SEE);

5. Arboricultural Impact Assessment and Tree Management Plan prepared by Redgum Horticultural dated 30 April 2024 (Arboricultural Assessment);

6. Biodiversity Development Assessment Report prepared by Ecoplanning dated 1 May 2024 (BDAR); and

7. a letter from Ecoplanning to the Respondent dated 26 March 2024.

5. On 7 May 2024, the Court granted the Applicant leave to amend its DA in accordance with its Amended Notice of Motion filed on 6 May 2024 (the amended DA).

6. The amended DA sought consent for the demolition of existing structures, staged residential subdivision creating 10 Torrens Title lots and 42 Community title lots including a private road, removal of trees, civil infrastructure and road construction, landscape works, retaining walls and utilities servicing on land.

7. 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 2 October 2024. I presided over the s 34 conciliation conference, which commenced with an on-site view. Two submitters attended and made submissions to the Court.

8. The s 34 conciliation conference was adjourned a number of times before a s 34 agreement was reached between the parties on 7 February 2025.

9. A signed s 34 agreement with Annexure A was filed with the Court on 7 February 2025, with amended plans (the further amended DA) and additional documents as agreed between the parties being filed with the Court on 21 March 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

10. The further amended DA includes the following:

1. Engineering Plans (Revision K) prepared by the Orion Group dated 21 November 2024;

2. Letter from Peterson Bushfire dated 23 October 2024;

3. Architectural Sections prepared by MHM Construction Group dated 20 October 2024;

4. Landscape Plans (Revision B) prepared by iScape Landscape Architecture dated 20 November 2024;

5. Waste Management Plan (Revision v1f) prepared by Sydney Environmental Group dated 20 November 2024;

6. Owner’s consent regarding DA and stormwater works dated 9 October 2024; and

7. Owner’s consent regarding upgrade works for stormwater management dated 22 October 2024.

11. 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.

12. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

13. 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 jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Jurisdictional Prerequisites

Owner’s Consent

14. The parties advise that:

1. The site is owned by the Applicant, and landowners’ consent has been provided with the DA.

2. Works are also proposed to be carried out on Lot 1 DP1144920, known as 175 Walters Road, Blacktown and landowner’s consent for that land has been provided to the Respondent.

Blacktown Community Engagement Strategy and Community Participation Plan 2024 (Sch 1, Div 2, s 7(1) of the EPA Act)

15. The DA as originally submitted was notified for a period of 14 days from 29 November 2023 in accordance with the Blacktown Community Engagement Strategy and Community Participation Plan 2024. Eighteen (18) objections were received during the notification period.

16. The plans lodged with the amended DA were notified to surrounding properties for a period of 14 days commencing on 10 May 2024. No objections were received during the notification period. On 28 May 2024, 1 late submission was received in response to the amended DA notification.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

18. The DA was lodged as an integrated development application pursuant to s 4.46 of the EPA Act. The amended DA was referred to the NSW Rural Fire Services (RFS) pursuant to s 100B of the Rural Fires Act 1997 (RFA) on 27 November 2023.

19. The parties advise that the RFS issued a Bushfire Safety Authority and general terms of approval for the amended DA pursuant to s 100B of the RFA on 22 January 2024, subject to conditions. A further letter from RFS was issued on 15 May 2024. The conditions imposed by RFS are included at Condition 17 within the conditions of consent.

Blacktown Local Environmental Plan 2015

20. The Blacktown Local Environmental Plan 2015 (the LEP) is the environmental planning instrument that applies to the site and to the proposed development. The site is primarily zoned R2 - Low Density Residential pursuant to cl 2.2 of the LEP; and

1. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone;

2. The parties advise that further amended DA is consistent with the objectives of the R2 Zone; and

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

21. The site includes a small portion of land (approximately 28 m²) on the north-east corner which is zoned RE1 Public Recreation, marked for open space and connects to the adjacent native vegetation east of the site (RE1 Portion). The parties advise that the Council is the relevant acquisition authority for this land.

22. Subdivision of land is permitted with consent under cl 2.6 of the LEP.

23. Demolition works are permitted with consent under cl 2.7 of the LEP.

24. The minimum subdivision lot size for both Community Title and Torrens Title lots under the LEP is 450m² pursuant to cll 4.1 and 4.1AA of the LEP. The parties advise that the further amended DA complies with this control.

25. The parties advise that the further amended DA seeks a balance of cut and fill to ensure appropriate building pads for the site. Existing benched levels for the site including a retaining wall along the southern boundary, are to be retained to ensure the impact to the interface of adjoining properties is minimised.

26. Clause 6.2 of the LEP relates to public utility infrastructure. Under cl 6.2 of the LEP, development consent must not be granted unless the consent authority 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 it is required. The parties advise that:

1. The site has access to existing essential services. Where required, the infrastructure will be augmented to accommodate the proposed development subject to the conditions of consent; and

2. The conditions of consent require the relevant certificates and approvals be obtained. The parties advise that the Court can be satisfied that the services that are essential for the proposed development will be available when required.

Biodiversity Conservation Act 2016

27. The Biodiversity Values Map (BVM) identified that the site contains mapped biodiversity values which are not biodiversity certified. A BDAR (Biodiversity Development Assessment Report) has been prepared for the site in accordance with the Biodiversity Assessment Method 2020 (BAM), pursuant to s 6.8 of the Biodiversity Conservation Act 2016 (the BC Act). The parties advise that:

1. The BDAR assessed that the proposed development is likely to impact native vegetation through the direct clearing of approximately 0.13 ha of remnant native vegetation which forms part of the PCT 3320 Cumberland Shale Plains Woodland in a ‘Degraded’ condition class. Cumberland Plain Woodland in the Sydney Basin Bioregion (CPW) is listed as a critically endangered ecological community under the BC Act;

2. Pursuant to s.7.13(2) of the BC Act, the consent authority, when determining the further amended DA in accordance with the EPA Act, is “to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values”;

3. Pursuant to Pt 7 of the BC Act, the BDAR assessed the potential impact of the development proposed under the amended DA on the relevant matters of conservation significance including native vegetation, the CPW TEC, and identified threatened species and concluded that:

1. the RE1 portion of the site contains areas of biodiversity values and the vegetation within the site has been identified as being of high conservation value on the BVM;

2. the development would occur over areas containing both remnant native vegetation, planted, and exotic vegetation and retain the 0.05 ha of remnant native vegetation across the site;

3. the removal of native vegetation within the site requires offsetting in the form of two (2) ecosystem credits to achieve the ‘no net loss standard’;

4. three (3) Swift Parrot species credits will be required to offset the habitat loss that will occur as part of the proposed development;

5. the proposed development will not contribute substantially to greater fragmentation of CPW TEC as the proposed vegetation clearance will not create breaks in existing vegetation or habitat corridors. The native vegetation within the site occurs on the edge of an isolated patch of woodland that is already subject to urban encroachment and edge effects; and

6. previous clearing and subsequent use as an aged care facility has led to the establishment of ornamental gardens and exotic grassland across most of the subject land. Approximately 94% of the site supports a mosaic of infrastructure, planted native vegetation, planted exotic vegetation and exotic grassland; and

4. The amended DA is supported by the BDAR, pursuant to s 7.7(2) of the BC Act.

28. The parties submit that the Respondent has considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR pursuant to Part 7 of the BC Act and is satisfied with the conclusions reached by the BDAR.

Environmental Protection and Biodiversity Conservation Act 1999

29. The parties advise that the remnant native vegetation within the subject land meets the listing criteria of Cumberland Plain Shale Woodlands (CPW) under the Environmental Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The patch of CPW within the site is part of a patch that is greater than 5 ha in size, which extends southeast of the subject land (CPW TEC Patch). Within the CPW TEC Patch surveyed in the BDAR, more than 30% of the perennial understorey comprised native species. Accordingly, the CPW TEC Patch meets the definition of the ‘Threatened Ecological Community’ under the EPBC Act.

30. The parties consider that the proposed removal within the CPW TEC Patch, which occurs in a degraded condition with little to no native midstorey and groundcover, is unlikely to significantly impact the broader ecological community’s structure, species composition, ecological processes, susceptibility to invasion of exotic species, or quality and continuity of habitat.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

31. The further amended DA proposes removal of trees to facilitate the proposed development. The Arboricultural Assessment has been prepared in support of the amended DA. The parties advise that the matters arising under Chapter 2 of the Biodiversity SEPP do not apply to the proposed development, and as such, are not a jurisdictional requirement for the Court to consider. This is because the Applicant has not applied to remove the trees under permit but rather seeks development consent to remove the trees under EPA Act.

32. The site is mapped as being within the Hawkesbury-Nepean Catchment under the State Environmental Planning policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP). Chapter 6 (Water Catchments) of the Biodiversity SEPP applies to the DA. The consent authority must consider the matters in Division 2 of Pt 6.2 of Ch 6 of the Biodiversity SEPP. The parties advise that:

1. The matters in s 6.6(1) of the Biodiversity SEPP have been considered by the Respondent through the requirements of Part J of the Blacktown Development Control Plan 2015 (Blacktown DCP). Conditions of consent are proposed which require that all engineering works required as part of the proposed development to be designed and undertaken in accordance with Part J of the Blacktown DCP (refer to Condition 2.6.1.1);

2. Noting the proposed requirement for the post development to comply with the water quality standards in Part J of the DCP, and noting that the site is not located in close proximity of a natural waterbody, the Court can be satisfied that any impact on the natural waterbody is neutral and the matters under s 6.6(2) of the Biodiversity SEPP are met;

3. In relation to the matters in s 6.7 of the Biodiversity SEPP, the consent authority can be satisfied that there will be no or minimal impact on aquatic ecology as the site is not located on land which contains terrestrial, aquatic or migratory animals or vegetation and the site is not located near a natural waterbody nor wetlands;

4. In relation to the matters in s 6.8 of the Biodiversity SEPP, the site is not located on flood liable land and the proposed development will have no impact on periodic flooding;

5. In relation to the matters in s 6.9 of the Biodiversity SEPP, the site is not located near any natural waterbodies or foreshores, and will have no impact on any public access to recreational land uses; and

6. In relation to s 6.10 of the Biodiversity SEPP, the proposed development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

33. In relation to the provisions of the Resilience SEPP, s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

34. For the purposes of s 4.6 of the Resilience SEPP, the parties advise that the Respondent has considered whether the site is contaminated and is satisfied that the site is suitable for subdivision, consistent with the Stage 1 Preliminary Site Investigation Report, Stage 2 Detailed Site Investigation Report, and Remediation Action Plan submitted with the DA.

35. I am satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

Blacktown Development Control Plan 2015

36. The parties agree that all contentions raised in the SOFAC have been resolved by the further amended DA provided by the Applicant during the course of the s 34A conference process and agreed conditions of consent.

Conclusion

37. Having considered the advice of the parties provided above at [14]-[36], I am satisfied that:

1. the Applicant’s further amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

38. Further, 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.

39. 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.

38. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

39. The Court notes that:

1. Blacktown City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No DA-23-01380 made on 7 February 2025 to rely on the documents specified below:

Drawing No and Revision		Title	Prepared by	Date
Engineering Plans
1	DA000 Revision K	Cover Sheet & Plan Index	Orion
	DA001 Revision H	General Layout Plan, Notes & Legend		23 October 2024
	DA002 Revision D	Demolition & Tree Removal Plan		13 March 2024
	DA003 Revision G	Site Regarding Plan		23 October 2024
	DA004 Revision E	Site Sections Sheet 01		12 September 2024
	DA005 Revision D	Site Sections Sheet 02		23 October 2024
	DA100 Revision G	Sediment & Erosion Control Plan		11 September 2024
	DA101 Revision C	Sediment & Erosion Notes & Details		12 March 2024
	DA200 Revision J	Engineering Plan		21 November 2024
	DA201 Revision F	Pavement Plan		23 October 2024
	DA210 Revision E	10.5m Garbage Truck Swept Path Plan		11 September 2024
	DA211 Revision A	12.5m HVR Swept Path Plan		11 September 2024
	DA212 Revision A	8.8m HVR Swept Path Plan		11 September 2024
	DA220 Revision A	Walters Road & Road 01 Safe intersection Sight Distance Plan		11 September 2024
	DA230 Revision A	Kerb Return Plan & Long Sections Sheet 01		11 September 2024
	DA231 Revision A	Kerb Return Plan & Long Sections Sheet 02		23 October 2024
	DA300 Revision D	Typical Road Cross Sections & Road Long Sections		11 September 2024
	DA310 Revision A	Walters Road Cross Sections		11 September 2024
	DA400 Revision C	Existing Stormwater Catchment Plan		12 March 2024
	DA401 Revision D	Stormwater Catchment Plan		11 September 2024
	DA402 Revision A	175 Walters Road Driveway Stormwater Runoff Capacity Plan		23 October 2024
	DA410 Revision D	Drainage Long Sections Sheet 01		11 September 2024
	DA411 Revision E	Drainage Long Sections Sheet 02		11 September 2024
	DA412 Revision D	Drainage Long Sections Sheet 03		11 September 2024
	DA500 Revision H	Retaining Wall Plan & Details		21 November 2024
	DA510 Revision G	Retaining Wall Long Sections Sheet 01		23 October 2024
	DA511 Revision F	Retaining Wall Long Sections Sheet 02		21 November 2024
	DA512 Revision A	Retaining Wall Long Sections Sheet 03		11 September 2024
	DA600 Revision G	Street Tree Plan		23 October 2024
	DA800 Revision A	Signage & Linemarking Plan		11 September 2024
Building Envelope Plan
2	Dwg No. 4 Revision D	Building Envelope Plan	MHM Construction Group	17 September 2024
Community Subdivision Plan
3	Reference: ECP2788.L.03_Community	Plan of Community Subdivision	Mony C.Seng	March 2024
Landscape Plans
4	Job.Dwg.No. 102.24/225”C”	Landscape Plan	iScape Landscape Architecture	20 November 2024
Road Section Plans
5	Sheet no. 1	Lot 21 Site & Section Plan	MHM Construction Group	20 October 2024
	Sheet no. 2	Lot 22 Site & Section Plan		20 October 2024
	Sheet no. 3	Lot 23 Site & Section Plan		20 October 2024
	Sheet no. 4	Lot 24 Site & Section Plan		20 October 2024
	Sheet no. 5	Lot 25 Site & Section Plan		20 October 2024
	Sheet no. 6	Lot 26 Site & Section Plan		20 October 2024
	Sheet no. 7	Lot 27 Site & Section Plan		20 October 2024
	Sheet no. 8	Lot 28 Site & Section Plan		20 October 2024
	Sheet no. 9	Lot 29 Site & Section Plan		20 October 2024
	Sheet no. 10	Lot 30 Site & Section Plan		20 October 2024
	Sheet no. 11	Lot 31 Site & Section Plan		20 October 2024
	Sheet no. 12	Lot 32 Site & Section Plan		20 October 2024
	Sheet no. 13	Lot 33 Site & Section Plan		20 October 2024
	Sheet no. 14	Lot 34 Site & Section Plan		20 October 2024
	Sheet no. 15	Lot 35 Site & Section Plan		20 October 2024
	Sheet no. 16	Lot 37 Site & Section Plan		20 October 2024
	Sheet no. 17	Lot 37 Site & Section Plan		20 October 2024
	Sheet no. 18	Lot 38 Site & Section Plan		20 October 2024
	Sheet no. 19	Lot 39 Site & Section Plan		20 October 2024
	Sheet no. 20	Lot 40 Site & Section Plan		20 October 2024
	Sheet no. 21	Lot 41 Site & Section Plan		20 October 2024
	Sheet no. 22	Lot 42 Site & Section Plan		20 October 2024
Documents
6	Owners Consent		La Valette Social Centre Inc.	9 October 2024
7	Owners Consent - Driveway		La Valette Social Centre Inc.	22 October 2024
8	Bushfire Access Advice		Peterson Bushfire Expert Consulting Services	23 October 2024
9	Waste Management Plan (Report No: 2133-WMP-01-201124.v1f)		Sydney Environmental Group	20 November 2024
10	Social Impact Assessment		Sarah George Consulting	June 2024
11	Preliminary DA Construction Cost Estimate		Hugh B. Gage Pty Ltd	16 September 2024

42. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application No. DA-23-01380, as amended, for the demolition of existing structures, staged residential subdivision to create 10 Torrens Title lots and 42 Community title lots including private road, removal of trees, civil infrastructure and road construction, landscape works, retaining walls and utilities servicing on land legally described as Lot 1 in DP787607, Lot 29 in DP 787387 and Lot 1 in DP135591 and known as 171 Walters Road, Blacktown and Lot 1 DP 1144920 and known as 175 Walters Road, Blacktown, subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Amended Annexure A (494579, pdf)

**********

Amendments

24 April 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure A”.

Decision last updated: 24 April 2025