Land and Environment Court New South Wales Medium Neutral Citation: Guntawong Estate Pty Ltd v Blacktown City Council (No. 1) [2021] NSWLEC 1755 Hearing dates: Conciliation conference held on 23 November 2021 Date of orders: 8 December 2021 Decision date: 08 December 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA-17-02750 for the Torrens Title subdivision of proposed Lot 101 in DA-17-02747, being part of the land described as Lot 48 DP 30186 and known as 172 Guntawong Road Riverstone, into 13 residential lots is approved subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application – residential subdivision – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55 — Remediation of Land, cl 7 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 12, cll 2.3, 2.6, 4.1, 4.1AA, 4.1AB, 4.1AD, 4.3, 4.4, 5.10 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Category: Principal judgment Parties: Guntawong Estate Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: C Gough (Solicitor) (Applicant) S Berveling (Respondent) Solicitors Storey & Gough (Applicant) Bartier Perry (Respondent) File Number(s): 2021/172731 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application (DA-17-02750) for the subdivision of land in Riverstone into 13 residential lots (Proposed Development). The land to be subdivided (Site) comprises part of Lot 48 DP 30186 known as 172 Guntawong Road, Riverstone (Parent Lot) and is Lot 101 in an approved subdivision (DA-17-02747) of the Parent Lot. Separate development applications have been made for the subdivision of two other lots in that approved subdivision and these are the subject of separate decisions of the Court in matters 2021/172718 and 2021/172733. 2. The DA was lodged with the Respondent on 22 December 2017 and was determined by the Respondent on 21 December 2020 by way of refusal. The Applicant appeals from that decision. 3. The DA was amended by the Applicant with the agreement of the Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended application was uploaded to the NSW Planning Portal on 19 November 2021 and filed with the Court on the same day. 4. The appeal was commenced on 16 June 2021 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court's jurisdiction. 5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 6. The appeal was listed for hearing for two days commencing on 23 November 2021. At the commencement of the hearing on 23 November 2021 the parties indicated that all of the issues between them had been resolved. At the parties' request, the hearing was adjourned and the matter was listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which took place on 23 November 2021. 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 signed agreement was filed with the Court on 23 November 2021 and is supported by a Jurisdictional Statement of the same date which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court granting development consent to the DA subject to conditions pursuant to s 4.16(1) of the EPA Act. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 8. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons: 1. The DA was made by the owner of the Site in accordance with cl 49 of the EPA Reg. 2. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act. 3. The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) applies to the Site. The Blacktown Growth Centres Precinct Plan (Precinct Plan), which comprises Appendix 12 of the Growth Centres SEPP, sets out detailed planning controls for the development of the Site. 4. The Site is within Zone R2 Low Density Residential under the Precinct Plan. On land within that zone various types of residential development may be carried out with development consent. 5. Clause 2.3(2) of the Precinct Plan provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to, and am satisfied that the Proposed Development, which proposes the creation of lots for residential development, is consistent with the objectives of the R2 Medium Density Residential zone in the Precinct Plan. Those objectives include the following: • 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. Under cl 2.6 of the Precinct Plan, land to which the Precinct Plan applies may be subdivided with development consent. 2. The Lot Size Map in the Precinct Plan does not specify a minimum lot size for the Site. Accordingly, cl. 4.1 of the Precinct Plan does not apply. 3. The Site is shown on the Residential Density Map in the Precinct Plan as requiring a minimum density of 15 dwellings per hectare. Pursuant to cl 4.1AB(3) of the Precinct Plan, the minimum lot size for a dwelling house on land within the Site is 300m2. The Proposed Development involves the creation of lots between 271m2 and 416m2. 4. An exception to the minimum lot size of 300m2 for a dwelling house is contained in cl 4.1AD(2)(a), enabling the grant of development consent to the erection of a dwelling house on a lot if that lot results from a subdivision to which development consent has been granted in accordance with cl 4.1AA. Clause 4.1AA(2) of the Precinct Plan provides that development consent may be granted to the subdivision of land resulting in the creation of a lot that has an area of less than 300 m2 (but not less than 225 m2), if the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. The parties' agreed position, which I accept, is that the lots proposed to be created that are less than 300 m2 in area each contain a sufficient building envelope to enable the erection of a dwelling house. 5. As the Proposed Development is for the subdivision of land only and does not involve the erection of any building, cll 4.3 (Height of Buildings) and 4.4 (Floor Space Ratio) do not apply. 6. The Site is not listed as an item of environmental heritage significance pursuant to the Precinct Plan (which does not provide for any heritage conservation areas) and thus cl 5.10 of the Plan does not apply. 7. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this Policy, a consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. The Statement of Environmental Effects lodged with the DA indicates that a Phase 1 Detailed Site Investigation Report was prepared by Ground Technologies in relation to the Site which concluded that the Site is suitable for the proposed development and that no site remediation is required. On the basis of that report, I am satisfied that the Site is suitable for residential development, being the stated purpose for which the Site is being subdivided. 8. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies to the Site. The clearing of vegetation on the Site was the subject of assessment and approval when development consent was granted for the subdivision of the Parent Lot (DA-17-02747). The Proposed Development does not involve the clearing of any additional vegetation. 9. The Proposed Development was notified to property owners and occupiers in the locality between 25 January and 8 February 2019. One written submission was received by the Council from the developer of an adjoining site. The issues raised by the objector relate to the impact of the Proposed Development on the development of the objector's land and, in particular, in relation to the levels and the interface of the road design and the diversion of overland flows onto the objector's land. I accept the parties' agreed position that the amended DA and conditions of consent satisfactorily address the issues raised by the objector to the extent that this is possible and reasonable. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA 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 appeal is upheld. 2. Development Application DA-17-02750 for the Torrens Title subdivision of proposed Lot 101 in DA-17-02747, being part of the land described as Lot 48 DP 30186 and known as 172 Guntawong Road Riverstone, into 13 residential lots is approved subject to the conditions set out in Annexure A. ………………………… A Bradbury Acting Commissioner of the Court Annexure A (289432, pdf) Plans (2946813, 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: 08 December 2021