Land and Environment Court New South Wales Medium Neutral Citation: Cohen v Penrith City Council [2020] NSWLEC 1331 Hearing dates: Conciliation conference on 24 July 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A to this agreement. (2) The Appeal is upheld. (3) Development Application DA/1140/2018 for the construction of a dwelling house, ancillary farm shed, pool, landscaping, vegetation and biodiversity management works and onsite waste water irrigation system on land legally described as Lot 3 in DP 539282 known as 880 Londonderry Road, Londonderry, NSW is approved subject to the conditions set out in Annexure A to this agreement. Catchwords: APPEAL – development application – dwelling house – vegetation management plan – conciliation conference – agreement reached Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No 55 – Remediation of Land Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Threatened Species Conservation Act 1995 Category: Principal judgment Parties: Mark Cohen (Applicant) Penrith City Council (Respondent) Representation: Counsel: D Tyrell (Solicitor) (Applicant) M Pearce (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Penrith City Council (Respondent) File Number(s): 2019/382962 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the construction of a dwelling house, ancillary farm shed, pool, landscaping, vegetation and biodiversity management works and onsite wastewater irrigation system on land at 880 Londonderry Road, Londonderry. 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 [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference was held on 24 July 2020. I presided over the conciliation conference. 3. At 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 amended development application includes a Vegetation Management Plan ("VMP"), which requires the ongoing management of an area of land that contains an Endangered Ecological Community ("EEC"). One of the agreed conditions of consent is that there will be, registered on the title of the land, a restriction on the use of that part of the land within the regeneration zone as identified in the VMP. 4. 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: * The development works are for the purposes of a dwelling house, which is a permissible use in in the RU4 Primary Production Small Lots zone, in which the relevant part of the site is located, pursuant to the Penrith Local Environmental Plan 2010 ("PLEP 2010"). The shed is also for the purpose of a dwelling house or ancillary to the use of a dwelling house, and one of the proposed conditions (condition 67) prevents it from being used for "any agricultural, commercial, industrial or habitable residential activity without the prior written approval of Council". * Part of the site is zoned E2 Environmental Conservation, in which environmental protection works are permissible with development consent. The conservation and biodiversity works that form part of the proposed development are therefore permissible with consent in the E2 Environmental Conservation zone. * The development does not breach any development standards in the PLEP 2010 or any other applicable environmental planning instrument. * The subject site is in a bushfire prone area. On the basis of the Bush Fire Assessment Report prepared by Roger Fenwick (dated October 2018) I am satisfied that the proposed development has appropriately mitigated the fire risk to the property and is satisfactory, in accordance with the specifications and requirements of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service, consistent with the requirement of s 4.14(1)(a) of the EPA Act. * The documents which are the subject of order (1) below, together with the documents lodged with the Class 1 Application, allow consideration of the matters required by cll 7.1(3), 7.4 and 7.6(2) of the PLEP 2010, and allow the Court, in exercising the functions of the consent authority, to be satisfied of the matters required in cl 7.5(3) of the PLEP 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 (No 2—1997) to be adequately addressed and considered. * A majority of the subject site is comprised of Cooks River/Castlereagh Ironbark Forest, which is listed as an EEC under the Threatened Species Conservation Act 1995 and the Biodiversity Conservation Act 2016. Based on the assessment carried out and recorded in the Flora and Fauna Assessment Report dated 24 April 2020, I am satisfied that the siting of the buildings and the VMP means that the proposed development is not likely to significantly affect threatened species or communities. * 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. The majority of site is original bushland. In order to resurface an existing accessway, the site has had fill of sandstone and road mix imported from Downer EDI. Downer EDI has provided certification that the fill is clear of contamination. The application does not require further consideration under cl 7(1)(b) of the policy. * The amended development application is accompanied by an updated BASIX Certificate, in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 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 mandates that I "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. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A to this agreement. 2. The Appeal is upheld. 3. Development Application DA/1140/2018 for the construction of a dwelling house, ancillary farm shed, pool, landscaping, vegetation and biodiversity management works and onsite waste water irrigation system on land legally described as Lot 3 in DP 539282 known as 880 Londonderry Road, Londonderry, NSW is approved subject to the conditions set out in Annexure A to this agreement. …………………….. J Gray Commissioner of the Court Annexure A (276926, pdf) ********** Amendments 04 August 2020 - Correction to the Respondent's representation details. 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: 04 August 2020