Land and Environment Court New South Wales Medium Neutral Citation: Archidrome Pty Ltd v Blacktown City Council [2022] NSWLEC 1087 Hearing dates: Conciliation conference held on 15 – 16 February 2022 Date of orders: 22 February 2022 Decision date: 22 February 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: 1) The Appeal is upheld. 2) Development Application No. DA-21-00897 for the Construction of 50 two (2) storey dwellings, associated 53 lot subdivision, civil and drainage works, and construction of community title lots, private roads and public roads at 95 Tallawong Road, Rouse Hill is approved subject to the conditions set out in Annexure "A" to this agreement. 3) Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – residential dwelling construction – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 2 Texts Cited: Blacktown City Council Growth Centre Precincts Development Control Plan 2010 Category: Principal judgment Parties: Archidrome Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: P Lailich (Solicitor) (Applicant) C Moreton (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/187447 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 21-00897 by the Blacktown City Council (hereafter the Council) which, as amended, seeks removal of trees, Torrens title subdivision into 53 lots, construction of 50 dwellings, and associated drainage/earth/civil works on Lot 34 DP 30186, also known as 95 Tallawong Road, Rouse Hill (together the site). Background 1. The DA was submitted to Council on 17 May 2021, and after notification, made consistent with the relevant planning controls, no submissions in objection were received during the notification period. 2. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, which was held by MS Teams. 4. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 5. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 21-00897, with conditions. 6. Pursuant to s 34(3) of the Court 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. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, to grant consent to DA 21-00897, subject to conditions in Annexure 'A'. Jurisdictional prerequisites 1. Pursuant to cl 49 of the EPA Reg , the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the DA. 2. The site is identified as bushfire prone land. Section 4.14 of the EPA Act establishes a requirement for consideration of relevant specifications relating to development on bushfire prone land. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent address the required bushfire protection measures. The Rural Fire Service have provided General Terms of Approval (GTA's), which are adopted in the conditions of consent. 3. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court: 1. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth): 1. Pursuant to the SEPP (Growth) the proposed subdivision and residential development is situated over land zoned part R3 Medium Density Residential and part SP2 Infrastructure – Drainage. The proposed subdivision and development as described to the Court is permissible with consent within the respective (land use) zones. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP Growth. The conditions of consent adopt the GTA's provided from Transport for NSW. 1. Sydney Regional Environmental Plan No 20–Hawkesbury-Nepean River (No 2—1997) (SREP 20): 1. The site is subject to the provisions of the SREP 20, pursuant to cl 2. The parties agree that the amended proposal is consistent with the provisions of the SREP 20. 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55): 1. Pursuant to cl 7 of the State Environmental Planning Policy 55 – Remediation of Land (SEPP 55), the site must be deemed suitable or can be made suitable for the proposed use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, including contamination assessment reports (Stages 1 and 2) and a remedial action plan (RAP), which are supported by the agreed conditions of consent, to address the requirements of cl 7 of SEPP 55. The Court notes that demolition of existing structures, including poultry sheds, does not form part of the DA that is the subject of this appeal. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: 1. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA. 1. Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (DCP): 1. The relevant requirements of the DCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original proposed development was publicly notified in accordance with the DCP, and no submissions were received. Grant of consent 1. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 21-00897 can be granted, as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 5. The Court notes that: 1. The Respondent as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the application for the development consent (DA-21-00897). 2. the Applicant will upload the amended application on the NSW planning portal within seven days of this order. 3. The Applicant is to file and serve a copy of the amended development application within seven days of it being lodged on the NSW Planning Portal. 1. The Court orders that: 1. The Appeal is upheld. 2. Development Application No. DA-21-00897 for the Construction of 50 two (2) storey dwellings, associated 53 lot subdivision, civil and drainage works, and construction of community title lots, private roads and public roads at 95 Tallawong Road, Rouse Hill is approved subject to the conditions set out in Annexure "A" to this agreement. 3. Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed ………………………… Sarah Bish Commissioner of the Court Annexure A (688276, 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: 22 February 2022