Land and Environment Court New South Wales Medium Neutral Citation: L&R Patri Pty Ltd v Blacktown City Council [2021] NSWLEC 1669 Hearing dates: 28-29 October 2021 Date of orders: 3 November 2021 Decision date: 03 November 2021 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent is granted to DA/17/01320 for demolition of the existing structures, Torrens Title subdivision of 1 lot into 34 residential lots with earthworks, tree removal, drainage and road construction at Lot 6 DP 229296, Garfield Road East, Riverstone, subject to conditions contained in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – subdivision of land – assessment of biodiversity values – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, ss 7.2, 7.3, 7.16 Biodiversity Conservation Regulation 2017, cll 6.7 Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 12, cll 4.1B, 4.1AB, 5.10, 6.1 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Water Management Act 2000 Category: Principal judgment Parties: L & R Patri Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: N Eastman (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Bartier Perry (Respondent) File Number(s): 2021/39740 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Blacktown Local Planning Panel on behalf of Blacktown City Council (the Respondent) of Development Application DA-17-01320 for the demolition of existing structures, Torrens title subdivision of 1 Lot into 34 residential lots with earthworks, tree removal, drainage and road construction at Lot 6 in DP 229296, Garfield Road East, Riverstone (the site). 2. In August 2021, the Applicant amended the development application to seek consent for Torrens title subdivision of 1 lot into 32 residential lots with earthworks, drainage and road construction staged as follows: * Stage 1: 25 residential lots, demolition, road construction, temporary onsite detention and flood storage basin; * Stage 2: removal of temporary onsite detention and flood storage basin and subdivision of 7 residential lots road construction. 1. The matter was initially listed before me for hearing, commencing 28 October 2021. However, prior to the hearing, the parties advised the Court that the parties had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 2. Accordingly, the matter was re-allocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference at which the parties explained to me how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [14]. 3. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 October 2021. 4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject in accordance with s 4.16 of the EPA Act, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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. 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. I formed this opinion of satisfaction as each of the jurisdictional preconditions identified by the parties is achieved, for the following reasons: 1. According to Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), the proposed development is permissible with consent on the land that is zoned as follows: 1. Part SP2 Infrastructure – Classified Road, along the site's northern boundary, wherein the zone objectives are: • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. 1. Part RE1 – Public Recreation, to the western boundary, wherein the zone objectives are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. 1. Part R2 Low Density Residential to the remainder, and majority, of the site, wherein the objectives of the zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow residents to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours. • To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment. 1. The original development application was publicly notified between 8 December 2017 and 12 January 2018, and the amended application was notified between 11 August 2021 and 10 September 2021. 2. The development application includes the construction of roads requiring earthworks and drainage work proposed to be located on adjacent land at Lot 7 in DP 229296, and at Lot 11 in Sec N in DP 712 and for which the owner has provided consent. 3. The proposed development is for Torren titles subdivision into lots that result in a residential density of 15 dwellings per hectare in accordance with the relevant control at cl 4.1B of Appendix 12 of the Growth Centres SEPP. 4. The proposed development is compliant with the minimum lot size of 500m2 applicable to the residential density set out above, as required by cl 4.1AB of Appendix 12 of the Growth Centres SEPP; 5. The site adjoins an item identified for its local heritage significance, known as 'Nu Welwyn', and so the provisions at cl 5.10 of Appendix 12 of the Growth Centres SEPP apply. On the basis of the Heritage Impact Statement prepared by Heritage 21 dated December 2017, the letter of advice prepared by Weir Phillips dated 25 May 2021, and the Aboriginal Heritage Due Diligence Assessment dated July 2017 prepared by Cultural Heritage Connections, I consider the impacts of the proposed development on the heritage significance of the adjoining site to be appropriately addressed. 6. I am satisfied that the agreed conditions of consent demonstrate adequate arrangements for the relevant public utility infrastructure of the kind set out at cl 6.1 of Appendix 12 of the Growth Centres SEPP. 7. The development is identified as Integrated Development within the meaning of s 4.46 of the EPA Act. General Terms of Approval dated 5 October 2021 have been granted by the Natural Resources Access Regulator. In particular, as the site is within certain proximity of First Ponds Creek, the site is classified as 'Waterfront Land'. Accordingly, a Controlled Activity Approval (CAA) is required under the Water Management Act 2000, and provision is made for a CAA in the agreed conditions of consent. 8. The majority of the site is subject to biodiversity certification conferred on the Growth Centres SEPP in 2007, but for a portion that is not identified as biodiversity certified land, that the parties agree was identified on the biodiversity value map on 27 November 2020. 9. According to s 7.2 of the Biodiversity Conservation Act 2016 (BC Act), development is likely to significantly affect threatened species if it is so found after applying the test in s 7.3 of the BC Act; if the development exceeds the biodiversity offsets scheme threshold; or it is carried out in a declared area of outstanding biodiversity value. 10. I have considered the Flora and Fauna Assessment dated 3 August 2021 prepared by Enviro Ecology, and the Biodiversity Development Assessment Report of the same author and date; as well as the extent of clearing proposed; and the biodiversity values mapped on the site at the time the development application was lodged, in accordance with the Biodiversity Conservation (Savings and Transitional) Regulation 2017. 11. On the basis of the above, I am satisfied that the proposed development will not significantly affect threatened species, or result in a serious and irreversible impact on biodiversity values as required by s 7.16(2) of the BC Act, and within the meaning of cl 6.7 of the Biodiversity Conservation Regulation 2017. 12. On the basis of the following, I am satisfied that the site will be made suitable for the proposed residential subdivision in accordance with cl 7 of State Environmental Planning Policy No 55 – Remediation of Land: * Detailed Site Investigation prepared by Aargus dated 1 June 2017; and * Salinity Assessment prepared by Aargus dated 1 June 2017. 1. 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. 2. 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. Orders 1. The Court notes that: 1. Blacktown City Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA/17/01320 per the documentation listed at (4). 2. the amended development application was lodged on the planning portal on 17 August 2021 and 27 October 2021. 3. the amended development application was filed with the Court on 4 August 2021 and 27 October 2021. 4. By consent, the development application is amended per the following documentation: Plan Name Drawing number Revision Date Prepared by Civil Sketch Plans Alternate intersection grading Clarke Street / Garfield Road East 21-0126-03-SK-100 1 24 September 2021 Orion Consulting Garfield Road East / Clarke Street intersection approach sight distance check 21-0126-03-SK-101 1 24 September 2021 Orion Consulting Clarke Street temporary construction turning head details 21-0126-03-SK-102 1 24 September 2021 Orion Consulting Proposed Road 1 / Clarke Street Signage and Line marking 21-0126-03-SK-105 1 6 October 2021 Orion Consulting Reports Supplementary Traffic Statement prepared by JMT Consulting dated 29 September 2021 Amended Biodiversity Management Plan prepared by Enviro Ecology dated 27 October 2021 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent is granted to DA/17/01320 for demolition of the existing structures, Torrens Title subdivision of 1 lot into 34 residential lots with earthworks, tree removal, drainage and road construction at Lot 6 DP 229296, Garfield Road East, Riverstone, subject to conditions contained in Annexure 'A'. …………………… T Horton Commissioner of the Court Annexure A (434923, 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: 03 November 2021