Land and Environment Court New South Wales Medium Neutral Citation: VISTA Elderslie Pty Ltd v Camden Council [2020] NSWLEC 1267 Hearing dates: Conciliation conference on 11 February 2020 Date of orders: 26 June 2020 Decision date: 26 June 2020 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between the parties – orders Legislation Cited: Camden Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan No 20— Hawkesbury-Nepean River Category: Principal judgment Parties: VISTA Elderslie Pty Ltd (Applicant) Camden Council (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/181043 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the staged subdivision of land to create residential lots, open space lots and a residue lot, road construction, realignment of part of the Herbert Rivulet, vegetation management and associated site works at land in the suburb of Elderslie, in the south-west of Sydney. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, were required to be made as a result of an agreement between the parties that was reached following a conciliation conference. 2. The development application was lodged on 11 October 2018 and as lodged, sought consent for the subdivision of land to create 42 residential lots, 2 open space lots, 1 residue lot, road construction, realignment of part of the Herbert Rivulet, vegetation management and associated site works, substantially on 110 Lodges Road, Elderslie, but in relation to the following properties: * 90A Lodges Road (Part lot 429, DP 1106634), owned by the Council. * 90D Lodges Road (Part lot 430, DP 1106634), owned by the Council. * 90E Lodges Road (Part lot 430, DP 11056634), owned by the Council. * 100 Lodges Road, (Lot 432, DP 1106634), owned by Mister Ivory Pty Ltd. * 110 Lodges Road (Lot 20, DP 1216458), owned by the applicant. * 120 Lodges Road (Lot 2, DP 1174771), owned by Letta Developments Pty Ltd. * 15 Knight Street (Lot 30, DP 1187346), owned by the Council. * 36A Liz Kernohan Drive (Lot 351, DP 1139677), owned by the Council. * 36B Liz Kernohan Drive (Lot 352, DP 1139677), owned by the Council. * 158 Camden Valley Way (Lot 301, DP 1143646), owned by the Council. * 36A Grimes Avenue (Lot 431, DP 1106634), owned by the Council. * 90A Camden Acres Drive (Part lot 429, DP 1106634), owned by the Council. * 90B Camden Acres Drive (Part lot 429, DP 1106634), owned by the Council. 1. Following the commencement of the appeal on 11 June 2019, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 11 February 2020. I presided over the conciliation conference. 2. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The principal changes between the development application as originally submitted and the development application that is the subject of the agreement are as follows: * The number of residential lots created by the subdivision has been reduced from 42 to 31. * The subdivision 'footprint' has been reduced to ensure a riparian corridor treatment acceptable to the Natural Resources Access Regulator. * The subdivision configuration has been modified to provide more regular shaped residential lots. * The road designs have been modified to be more consistent with the DCP and comply with the requirements of the NSW Rural Fire Service. * The alignment of Liz Kernohan Drive has been modified to be more consistent with the alignment shown in the DCP. * A heritage view corridor identified by the DCP has been provided (road MC01). * Stormwater drainage infrastructure has been consolidated into a single drainage facility. * An offer to enter into a Voluntary Planning Agreement, which was previously made to the Council, has been withdrawn. 1. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * Owners consent has been given by the owners of each parcel of land. * The development works are for the purpose of the subdivision of land, which is permissible in the zones in which the land is located, pursuant to the Camden Local Environmental Plan 2010 ("CLEP 2010"). * The public utility infrastructure that is essential for the development is available, as required by cl 6.2 of the CLEP 2010. * The documents which are the subject of order (1) below allow consideration of the matters required by cl 7.4(3) of the CLEP 2010 and allow the Court, in exercising the functions of the consent authority, to be satisfied of the matters required in cl 7.1(3) of the CLEP 2010. * The documents which are the subject of order (1) below, together with the documents lodged with the Class 1 Application, allow the matters in cll 5 and 6 of Sydney Regional Environmental Plan No 20— Hawkesbury-Nepean River to be adequately addressed and considered. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land, and, based on the Detailed Site Investigation by EI Australia dated 23 July 2018 and the Salinity Management Plan by EI Australian dated 30 May 2019, I am satisfied that the site is suitable for the proposed development. * The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. * The proposal also requires the concurrence of the National Resources Access Regulator, which issued general terms of approval on 18 May 2020. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. Leave is granted to the Applicant to rely upon the following amended plans and additional documents: Amended Plans Plan Reference / Drawing No. Name of Plan Prepared by Dated SK_R1_204 Issue M Site/Development Detail Plan Option 8 Moderinn Pty Ltd 30 April 2020 N/A Stage 1 and Stage 2 Subdivision Plan N/A Undated DA-000 – DA-600 (inclusive) various revisions Engineering and related plans Lindsay Dynan Various L1 – L5 (inclusive) Revision A Landscaping and related plans Nicholas Bray Landscapes 1 May 2020 SK_R1_400 Issue A Herbert Rivulet Interface Moderinn Pty Ltd 26 November 2019 Additional Documents Document Prepared by Dated DA Engineering Design Report Lindsay Dynan 26 May 2020 Water Cycle Master Plan - Herbert Rivulet Riparian Corridor Revision Lindsay Dynan 28 May 2020 Flood Evacuation Report Lindsay Dynan 29 May 2020 Detailed Design Road Safety Audit SECA Solution March 2020 Arboricultural Impact Assessment Report McArdle Aboricultural Consultancy 8 May 2020 Bushfire Assessment Report Building Code & Bushfire Hazard Solutions Pty Limited 18 February 2020 Salinity Management Plan EI Australia 30 May 2019 DA Acoustic Assessment Acoustic Logic 11 February 2020 Aboriginal Due Diligence Assessment for Proposed Residential Development AECOM 10 February 2020 Revised Vegetation Management Plan for Native Bushland UBM Ecological Consultants Pty Ltd 4 December 2019 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in accordance with Order (1) above and the previous order on 23 January 2020 in the amount of $35,000, within 28 days of the date of these Orders. 2. The appeal is upheld. 3. Development Application 2018/1231/1 lodged with the Respondent on 11 October 2018 and as amended for the staged subdivision of land to create 31 residential lots, 4 open space lots and 1 residue lot, road construction, realignment of part of the Herbert Rivulet, vegetation management and associated site works at 110 Lodges Road, Elderslie NSW 2570 is approved subject to the conditions at Annexure "A". ……………………. J Gray Commissioner of the Court Annexure A (298259, pdf) Plans (1828156, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2020