Land and Environment Court New South Wales Medium Neutral Citation: Deerubbin Local Aboriginal Land Council v Penrith City Council [2021] NSWLEC 1395 Hearing dates: Conciliation conference on 26 May and 17 June 2021 Date of orders: 7 July 2021 Decision date: 07 July 2021 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) Leave is granted for the Applicant to rely on the amended plans and additional information as referred to in Annexure A; (2) The appeal is upheld; (3) Development consent is granted to development application no DA20/0551 for the construction of a community facility, site remediation and environmental protection works, with associated on-site sewage management, drainage, landscaping, signage, car parking and tree removal works at 41-63 Cranebrook Road, Cranebrook NSW subject to the conditions at Annexure B; (4) No order as to costs. Catchwords: DEVELOPMENT APPLICATION – community facility – conciliation conference – agreement between the parties – orders Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Biodiversity Conservation Act 2016 s 6.12 and Part 7 Biodiversity Conservation Regulation 2017 Environmental Planning and Assessment Act 1979 ss 1.7, 4.14, 4.15 Land and Environment Court Act 1979 ss 34, 39 Penrith Local Environmental Plan 2010 cll 4.3, 4.4, 5.10, 7.1- 7.7 Roads Act 1993 s 138 State Environmental Planning Policy (Infrastructure) 2007 (NSW) cl 101 State Environmental Planning Policy No 55—Remediation of Land State Regional Environmental Plan 20—Hawkesbury–Nepean River (No 2—1997) Water Management Act 2000 s 91 Texts Cited: Penrith City Council Development Control Plan 2014 Penrith City Council Water Sensitive Urban Design Policy 2013 Planning for Bush Fire Protection Category: Principal judgment Parties: Deerubbin Local Aboriginal Land Council (Applicant) Penrith City Council (First Respondent) Transport for NSW (Second Respondent) Representation: Counsel: M Wright SC (Applicant) J Wauchope (Solicitor) (First Respondent) J Dorricott (Solicitor) (Second Respondent) Solicitors: Chalk & Behrendt (Applicant) Dentons (First Respondent) Maddocks (Second Respondent) File Number(s): 2020/361747 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Integrated Development Application, DA20/0551. This development application, lodged with Penrith City Council (the Council) on 4 September 2020, is for the construction of a Community Facility for Deerubbin Local Aboriginal Land Council (the Applicant), including site remediation and environmental protection works, and associated onsite sewage management, drainage, landscaping, signage, car parking and tree removal at 41-63 Cranebrook Road, Cranebrook, Lot 348 and Lot 349 in DP 752021. 2. 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 26 May 2021, with further conciliation concluding on 17 June 2021. I presided over the conciliation conference. 3. After the 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 granting leave to rely on amended drawings, upholding the appeal and granting development consent to the development application subject to conditions. 4. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which are detailed in the following paragraphs. 6. The land which is the subject of these proceedings is owned by the Applicant in these proceedings, Deerubbin Local Aboriginal Land Council. 7. The development application was notified as required from 28 September 2020 to 28 October 2020. Three submissions were received, raising concerns in relation to: biodiversity impacts; maintaining surrounding residential amenity; and traffic and parking impacts. In response, the Biodiversity Development Assessment Report (BDAR) by Travers Bushfire and Ecology, has been revised and relevant conditions of consent imposed. In addition, further conditions of consent relating to neighbour amenity have been imposed, limiting daily operational hours and visitation numbers, and providing operational details in a Plan of Management. In response to traffic and parking concerns, the detailed Traffic and Parking Assessment has been updated by letter dated 14 April 2021. 8. Pursuant to s 91 of the Water Management Act 2000, General Terms of Approval (GTAs) are required from the Natural Resources Access Regulator (NRAR) as the proposed development involves works on 'waterfront land'. GTAs were provided by the NRAR on 9 November 2020, and the requirements incorporated into the agreed conditions of consent. 9. The driveway connection of this site to Cranebrook road requires approval from the relevant roads authority under s 138(1) of the Roads Act 1993 (Roads Act). In this case, the relevant roads authority is the Council, however, pursuant to s 138(2) of the Roads Act, as the servicing road is a classified road, this approval cannot be granted without the concurrence of Transport for NSW (TFNSW). TFNSW were a party to these proceedings, and have provided provisional concurrence subject to the imposition of conditions, which have been incorporated into the conditions of consent. 10. This development proposal is accompanied by a BDAR, as required under Part 7 of the Biodiversity Conservation Act 2016 (BC Act). The BDAR has been prepared in accordance with the Biodiversity Conservation Regulation 2017, and assesses the biodiversity values of the site and the impact of the proposed development, and sets out measures to avoid or minimise the impact of the development. These measures have been incorporated into a Vegetation Management Plan and are reflected in the agreed conditions of consent. Subsequently, I am satisfied that the proposed development is not likely to have serious and irreversible impacts on biodiversity values. 11. The subject site is identified as bushfire prone land in the Penrith Local Environmental Plan 2010 (PLEP). Concurrence from the NSW Rural Fire Service (RFS) is not required, however pursuant to s 4.14 of the EPA Act, the development must comply with the RFS Planning for Bush Fire Protection guideline. The development application was referred to the RFS for comment, and their response was subsequently incorporated into the conditions of consent. I am satisfied that, subject to the conditions of consent, the development will comply with the Planning for Bush Fire Protection guideline. 12. Pursuant to s 39(4) of the LEC Act, I have had regard to the relevant provisions of the Aboriginal Land Rights Act 1983. 13. The land is zoned partly RU4 Primary Production and partly E2 Environmental Conservation. The proposed community facility is located entirely within the RU4 zone, and environmental protection works will take place on the whole of the land. Under the PLEP, community facilities are permissible with consent in the RU4 zone and environmental protection works are permissible with consent in both RU4 and E2 zoning. 14. No maximum height of building or floor space ratio applies to this site in the PLEP. There are no heritage items on or directly adjacent to the site, and the site has no heritage significance, as confirmed in the Statement of Environmental Effects (SEE). 15. I am satisfied that the considerations of PLEP cl 7.1 Earthworks have been adequately addressed because of the information contained in the following documents: 1. Revised BDAR by Travers Bushfire and Ecology, dated 2 June 2021, 2. SEE by Cityscape Planning + Projects, dated September 2020, 3. Phease 1 (Entire Site) and Phase 2 (Proposed Development Area) Contamination Assessment Report by GeoEnviro Consultancy Pty Ltd dated 15 November 2019, 4. Remediation Action Plan by GeoEnviro Consultancy Pty Ltd dated 15 November 2019, 5. Soil and Water Management Plan by J. Wyndham Prince Pty Ltd dated 28 May 2021 and Soil and Water Management Notes by J. Wyndham Prince Pty Ltd dated 14 August 2020, 6. Revised Stormwater Management Strategy by J. Wyndham Prince dated 22 April 2021, 7. Proposed conditions of consent. 1. Pursuant to PLEP cl 7.2 Flood Planning, I am satisfied that although a portion of the development is located at or below the 1% Annual Exceedance Probability (AEP) flood extent, the provisions of cl 7.2(4) are adequately addressed in the following documents: 1. Stormwater Management Strategy by J. Wyndham Prince, dated 22 April 2021, 2. Letter, 'Deerubbin LALC v PCC – Transport for NSW response' by David Crompton, Manager Stormwater and Environment Group, dated 13 April 2021, 3. BDAR by Travers Bushfire and Ecology, dated 2 June 2021, 4. Proposed conditions of consent. 1. Pursuant to PLEP cl 7.3 Development on natural resources sensitive land, I am satisfied based on the Applicant's submission, the revised BDAR and the SEE that the proposed development meets the objectives in PLEP cl 7.3(1), and that the development is designed, located and will be managed to avoid any potential adverse environmental impact on the small portion of the site to which this clause applies. 2. Pursuant to PLEP cl 7.4 I have had regard to the principles of sustainable development and considered the items listed in cl 7.4, and am satisfied that the measures outlined on p44 of the SEE adequately address this requirement. 3. The subject site is identified in the PLEP cl 7.5 and associated map as 'Land with scenic and landscape values'. Based on the information provided at SEE pp 47-48 and the landscape architecture and revised architecture drawings, pursuant to PLEP cl 7.5, I am satisfied that measures have been taken in relation to the location and design of the development to minimise the visual impact of the development from major roads and other public places. 4. A Salinity and Pavement Investigation report, prepared by GeoEnviro Consultancy Pty Ltd, has been submitted with the Class 1 application. This identifies that the site is mapped as having high salinity potential but upon testing is non to moderately saline. This report also identifies measures to avoid or reduce and undesirable effects that result from, or impact, the proposed development. I am subsequently satisfied that the requirements of PLEP cl 7.6 Salinity are met. 5. Based on the Report on Investigation and Assessment for On-Site Effluent Management at Lots 348 and 349 DP752021, No 41-63 Cranebrook Road, Cranebrook, by Blue Mountains Geological and Environmental Services Pty Ltd and the letter from the same consultant regarding on-site effluent for the proposed development, I am satisfied that pursuant to PLEP cl 7.7 Servicing, the development will be connected to a reticulated water supply, will have adequate facilities for the removal and disposal of sewage, and the need for public amenities will be met. 6. State Environmental Planning Policy No 55—Remediation of Land applies to the site. The SEE and Contamination Assessment Report indicate that some contamination exists on the subject site. Based on the provisions established in the Remediation Action Plan (RAP) dated 1 July 2020, I am satisfied that with the implementation of these provisions, the land will be suitable for the intended use as a community facility. 7. State Regional Environmental Plan 20—Hawkesbury–Nepean River (No 2—1997) (SREP 20) applies to the subject site, ensuring that the impacts of future land uses on the Hawkesbury Nepean River System are considered in a regional context. The Stormwater Management Plan identifies the relevant Water Sensitive Urban Design (WSUD) measures taken to ensure the proposed development is consistent with the Penrith City Council Water Sensitive Urban Design Policy 2013 and the Penrith City Council Development Control Plan 2014 (PDCP) Part C3 – Water Management. On this basis, I am satisfied that the aim of SREP 20 is met with this proposed development. 8. The site and proposed development are accessed from a classified road, and pursuant to cl 101 of the State Environmental Planning Policy (Infrastructure) 2007, I am satisfied that whilst it is not practicable to access the site from a road other than a classified road, the requirements of cl 101(b) and (c) are met, as demonstrated in the following documents: 1. Proposed Road Grading and Drainage Works drawings by J. Wyndham Price dated 28 May 2021, 2. The Transport and Traffic Planning Associates letter including traffic counts and swept paths, dated 14 April 2021, 3. Traffic and Parking Assessment by Transport and Traffic Planning Associates, dated September 2020. 1. I am satisfied, based on the information provided in the SEE, that the relevant requirements of the PDCP have been adequately considered in the proposed design. 2. For the reasons stated in this judgment, 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. 3. 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. 4. The Court orders: 1. Leave is granted for the Applicant to rely on the amended plans and additional information as referred to in Annexure A; 2. The appeal is upheld; 3. Development consent is granted to development application no DA20/0551 for the construction of a community facility, site remediation and environmental protection works, with associated on-site sewage management, drainage, landscaping, signage, car parking and tree removal works at 41-63 Cranebrook Road, Cranebrook NSW subject to the conditions at Annexure B; 4. No order as to costs. ………………………. E Washington Acting Commissioner of the Court Annexure A (191099, pdf) Annexure B (322427, 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: 07 July 2021