Land and Environment Court New South Wales Medium Neutral Citation: Santilli Pty Ltd v Blacktown City Council [2021] NSWLEC 1113 Hearing dates: Conciliation conference on 26 February 2021 Date of orders: 4 March 2021 Decision date: 04 March 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders (see [14]) Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 National Parks and Wildlife Act 1974 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan No 20—Hawkesbury Nepean River (No 2—1997) Water Management Act 2000 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Santilli Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: R White (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Bartier Perry (Respondent) File Number(s): 2020/217114 Publication restriction: No Judgment 1. COMMISSIONER: Santilli Pty Ltd (the Applicant) has appealed the deemed refusal by Blacktown City Council (the Respondent) of its development application (DA-19-00934) which seeks consent for demolition of existing structures and Torrens Title subdivision of land in two stages, construction of roads, tree removal and bulk earthworks for the purpose of residential development, and construction of a temporary on-site water detention basin (the Proposed Development) at 167 Riverstone Road and Regent Street, Riverstone (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential and SP2 Infrastructure, for the purposes of an Educational Establishment, under the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), and the Proposed Development is permissible within those land use zones. The development application for the Proposed Development is made with owners' consent, and the Parties specifically advised that: 1. Council sought owner's consent and an easement for significant batter works, a drainage outlet of headwall 100/09 and swale No 1 within Lot 56 in DP 1247574. As detailed in the Engineering Joint Expert Report filed 18 February 2021 at page 3, this contention is resolved. This is because no works are proposed on that lot as shown on plan 19-000162 Dwg Nos 301 and 302 rev 2; 2. Council sought owner's consent and an easement for significant batter works, a drainage outlet of headwall 100/09 and swale No 1 within Lot 7 in Sec N in DP 712. As detailed in the Engineering Joint Expert Report filed 18 February 2021 at page 3, this contention is resolved. This is because no works are proposed on that lot as shown on plan 19-000162 Dwg Nos 301 and 302 rev 2; 3. Council sought owner's consent and an easement for significant batter, road and drainage works proposed on Lot 14 in DP 1247573. The Parties have agreed that an easement is not required and the owner's consent has been given by way of a Deed for Licence over that lot which is attached to the s34 agreement; 4. Council sought owner's consent and an easement over Lot 12 in Sec O of DP 712. The parties have agreed an easement is not required and owner's consent has been given by the registered proprietor Ms Kerrie Santilli which is attached to the s34 agreement; 5. Council sought owner's consent and an easement for significant drainage works on Lot 7 in Sec O of DP 712. As detailed in the Engineering Joint Expert Report filed 18 February 2021 at page 3, this contention is resolved by Dwg No. 19-000162_SK03 dated 16 Nov 2020 which is attached to the Engineering Joint Expert Report. 1. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 2. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 26 February 2021, and I presided over the conciliation conference. 3. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). On the advice of the Parties, a site view was not undertaken at the commencement of the conciliation conference. 4. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 5. 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. 6. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept, that: 1. a Preliminary Contamination Assessment was undertaken by Geotechnique Pty Ltd dated 31 May 2019; 2. based on the conclusions of this report the Subject Site is suitable for the proposed residential subdivision development, subject to a number of recommendations which have been incorporated into the Parties' proposed conditions of consent; 3. the provisions of cl 7 of SEPP55 have been addressed as there is no reason to believe that the Site is contaminated; and 4. the Subject Site is suitable for the Proposed Development which is for its intended residential use. 1. the Parties have confirmed, and I accept, that the Applicant's development application (as amended) satisfies all applicable provisions of the Growth Centres SEPP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure "A" to this judgment. In particular, the Parties have confirmed, and I accept, that the following provisions of the Growth Centres SEPP have been addressed by the Applicant's Proposed Development (as amended): 1. clause 4.1AB concerning minimum lot sizes for residential development in land zoned R2 Low Density Residential, and all proposed residential lots comply with the minimum lot size requirements for residential development; 2. clause 4.1 concerning residential density requires that a minimum dwelling density of 15 dwellings per hectare applies to the Subject Site, and the Parties have advised, and I accept, that the Proposed Development has a density of 15.3 dwellings per hectare including the dual occupancy lots which complies with the provisions of this clause; 3. clause 5.1 concerning relevant acquisition authorities and which seeks to identify, for the purposes of s 3.15 of the EP&A Act, the authority of the State that will be the relevant authority to acquire land reserved for certain public purposes if the land is required to be acquired. In relation to this, the Parties have advised that a portion of the Subject Site is identified to be SP2 Infrastructure, for the purposes of an Educational Establishment, and discussions with NSW Department of Education have confirmed its relinquishment of interest in acquiring the Subject Site for school purposes; 4. clause 6.1 concerning public utility infrastructure requires that the consent authority be satisfied that any public utility infrastructure that is essential is available or adequate arrangements have been made to make that infrastructure available when required. The Parties have confirmed that: 1. the Subject Site is located in proximity to the Riverstone potable water main and the First Ponds Creek Carrier Section 2 wastewater main for servicing; 2. adequate arrangements can be made to ensure the supply of water, electricity and disposal, and the management of sewage as these are required; and 3. appropriate conditions of consent have been proposed with the grant of consent to confirm these arrangements. 1. clause 6.9 concerning development on certain land identified as Green and Golden Bell Frog habitat, and in relation to which: 1. consent must not be granted for development on land to which the clause applies unless the consent authority is satisfied that the development will not adversely affect the quality and condition of any habitat of the Green and Golden Bell Frog on the land to which this clause applies that is within Zone SP2 Infrastructure and marked "Drainage"; 2. the Parties have advised, and I am satisfied, that, while developments within and along Regent Street have the potential to generate indirect impacts from water run-off and sedimentation on land zoned SP2 Infrastructure, those impacts will be mitigated through strict measures during construction; and 3. recommendations to achieve the above outcomes have been provided within a Flora and Fauna Assessment undertaken by Eco Logical dated 3 June 2019, and these recommendations have been incorporated into the Parties' proposed conditions of consent. 1. in relation to the provisions of the Water Management Act 2000 (the Water Act) the Parties advise, and I accept, that: 1. the proposed subdivision is integrated development requiring referral to the National Resources Access Regulator (NRAR) under the Water Act as it includes works within 40 metres of a watercourse; and 2. on 30 August 2019, the NRAR issued its General Terms of Approval which have been incorporated into the Parties' proposed conditions of consent. 1. in relation to the provisions of the National Parks and Wildlife Act 1974 (the NPW Act), the Parties have advised, and I accept: 1. the proposed subdivision is integrated development requiring referral to the Office of Environment and Heritage as the Subject Site contains items of Aboriginal significance which requires an Aboriginal Heritage Impact Permit pursuant to s 90 of the NPW Act; 2. the Applicant commissioned an Aboriginal Cultural Heritage Assessment prepared by Baker Archaeology and dated 1 May 2020; 3. on 18 May 2020 the Office of Environment and Heritage provided its general terms of approval which have been incorporated into the Parties' proposed conditions of consent. 1. in relation to the provisions of Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20), the Parties have advised, and I accept, that the matters requiring consideration under cll 5, 6 and 8 of the SREP 20 have been considered, and the Parties' proposed conditions of consent satisfy the requirements of SREP 20 in relation to the management stormwater run-off quality and quantity; 2. the Proposed Development has been notified consistent with the provisions of the Growth Centres SEPP, the Environmental Planning and Assessment Regulation 2000, and no submissions were received in response to that notification. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further 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. 4. 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. 5. 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. 6. The Court orders that: 1. The Applicant is granted leave to rely upon the following amended plans: Drawing Prepared by Revision Date Drawing 19-000162_SK03 Calibre Revision 1 16.11.2020 167 Riverstone Road, Riverstone Intersection Grading and Drainage Amendment Drawing 19-000162_SK04 Calibre Revision 1 16.11.2020 167 Riverstone Road, Riverstone Stage 1 Laneway Plan – 11m Garbage Truck Swept Path Drawing 19-000162_SK09 Calibre Revision 0 16.02.2021 Typical Driveway Grading Driveway Clearances 167 Riverstone Road Drawing 19-000162-DA-1 Sheet 1 of 4 Calibre Issue 3 15.02.2021 Proposed subdivision of Lot 13 in DP712 and Lot B in DP362093 Development Application - Masterplan Drawing 19-000162-DA-2 Sheet 2 of 4 Calibre Issue 3 15.02.2021 Proposed subdivision of Lot 13 in DP712 and Lot B in DP362093 Development Application – Stage 1 Drawing 19-000162-DA-3 Sheet 3 of 4 Calibre Issue 2 11.02.2021 Proposed subdivision of Lot 157 in Previous Application Development Application – Stage 2 Drawing 19-000162-DA-4 Sheet 4 of 4 Calibre Issue 1 29.11.2019 Proposed subdivision of Lot 13 in DP712 and Lot B in DP362093 Building Envelopes Plan 167 Riverstone Road, Riverstone – Arboricultural Impact Assessment, 20SUT-17581 ecological V2 22 October 2020 Letter of Owner's Consent – Lot 12/Section O/DP712 15 October 2020 Deed of Licence between Santilli Pty Ltd and Blacktown City Council 26 February 2021 1. The Applicant is to pay the Respondent's costs thrown away on an as agreed or assessed basis pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application No. DA-19-00934, as amended, for the demolition of existing structures and tree removals, staged Torrens Title subdivision of 2 lots into 64 residential lots and 4 residue lots, construction of new roads and temporary on-site water detention basin with associated earthwork and drainage works at Lot B DP 362093 and Lot 13 Sec O DP712 otherwise known as 167 Riverstone Road Riverstone and Regent Street Riverstone NSW 2765 is approved subject to the conditions included at Annexure "A". ………………………….. M Chilcott Commissioner of the Court Annexure A (580032, 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: 05 March 2021