Land and Environment Court New South Wales Medium Neutral Citation: O'Connell Street Caddens Pty Ltd ATF O'Connell Street Caddens Unit Trust v Penrith City Council [2022] NSWLEC 1330 Hearing dates: Conciliation conference on 26 April 2022, and 15 June 2022 Date of orders: 24 June 2022 Decision date: 24 June 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Applicant pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $40,000. (3) Development Consent is granted to DA/21/0323 for a staged Community Title subdivision to create 119 residential lots, 1 residue lot and 4 super lots, civil works, creation of a new park and associated landscaping at 46-66 O'Connell Street, Caddens, subject to the conditions contained in Annexure 'A'. Catchwords: APPEAL – development application – community title subdivision – earthworks – road construction – landscaping – conciliation conference – agreement reached Legislation Cited: Biodiversity Conservation Act 2016 s 7.7 Biodiversity Conservation Regulation 2017 cl 7.2 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010, cll 5.21, 7.1 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Water Management Act 2000 Category: Principal judgment Parties: O'Connell Street Caddens Pty Ltd ATF O'Connell Street Caddens Unit Trust (Applicant) Penrith City Council (Respondent) Representation: Counsel: M Staunton (Applicant) T To (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/222237 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings concern a development application for staged community title subdivision of land at 46-66 O'Connell Street, Caddens. The development application was lodged with Penrith City Council on 11 May 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The hearing of the appeal commenced on 16 March 2022. Following the adjournment of the hearing, 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 April 2022 and 15 June 2022. I presided over the conciliation conference. 3. 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 agreement was filed on 15 June 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 4. The amended development application is an integrated development application that seeks a staged community title subdivision of the land into 119 residential lots, 1 residue lot and 4 super lots and the carrying out of civil works, earthworks, and associated landscaping. The landscaping includes the creation of a new park. The amendments made in the amended development application include the inclusion of a variety of lot sizes and widths designed to accommodate a range of future dwelling types, as well as the four super lots that can accommodate future medium density development. The amendments also increase the width of the road reserves, include a pocket park to contribute to the amenity of the area, and minimises impacts on the intact Cumberland Plain Woodland patch within the site. 5. The decision agreed upon is for the grant of development consent to the amended development application, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional matters about which the Court, in exercising the functions of the consent authority, must be satisfied prior to the grant of development consent. The parties also annexed a statement of reasons to the signed agreement, which sets out the reasons why the agreement has been reached. 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 (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * Pursuant to the Penrith Local Environmental Plan 2010 (PLEP), part of the site is zoned R3 – Medium Density Residential, and the western portion of the site fronting O'Connell Street is zoned B2 – Local Centre. Subdivision of land is permissible within the B2 and R3 zones. The proposed development is a community title subdivision, and there is no minimum lot size that applies to this type of subdivision. * The proposed development includes earthworks, and cl 7.1 of the PLEP requires certain matters to be considered prior to the grant of development consent. Based on the bulk earthworks plan, the notes in the engineering plans, and the agreed conditions of development consent, I have considered the matters in cl 7.1(3). * The site is within the flood planning area and cl 5.21 of the PLEP applies. Based on the Overland Flow Flood Study Report dated 4 May 2022, I have considered the matters in cl 5.21(3) of the PLEP and I am satisfied of the matters in cl 5.21(2). * Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP 2021). Based on the Detailed Site Investigation prepared by ERM Services Australia dated May 2020, and the Detailed Site Investigation prepared by Dirt Doctors dated 23 February 2021, I am satisfied that the potential for contamination of land is low and that the site can be made suitable for the proposed development. * The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a s 100B bush fire safety authority subject to terms of approval, which have been incorporated in the conditions of development consent. * The National Resources Access Regulator has confirmed (in a letter dated 24 March 2022) that a controlled activity approval under the Water Management Act 2000 is not required as the works are not on waterfront land. * The proposed development includes the clearing of certain native vegetation that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report (BDAR) is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the amended development application includes a BDAR prepared by Cumberland Ecology dated 14 March 2022. The BDAR recommends the implementation of a number of mitigation measures, through a Vegetation Management Plan and a Fauna Management Plan, which have each been prepared and form part of the proposed development. The BDAR includes that, with the implementation of the proposed mitigation measures, the impacts of the proposed development on threatened fauna and ecological species will be limited and retained vegetation will be subject to active management. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have therefore been satisfied. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. Penrith City Council, as the relevant consent authority, has agreed, under cl 55(1) of the EPA Regulation, to the Applicant amending the Development Application DA/21/0323 in accordance with the documents listed below: Plan Name Project Drawing No and Revision Prepared By Dated Reference Amended Civil Plans Cover Sheet, Locality Plan and Drawing Schedule P00361 P00361-CI-S34-1001, Revision F Group Development Services Pty Ltd 27 May 2022 General Notes P00361 P00361-CI-S34-1021, Revision F Group Development Services Pty Ltd 27 May 2022 Subdivision Plan P00361 P00361-CI-S34-1025, Revision F Group Development Services Pty Ltd 27 May 2022 General Arrangements Plan P00361 P00361-CI-S34-1031, Revision F Group Development Services Pty Ltd 27 May 2022 Existing Site Survey P00361 P00361-CI-S34-1051, Revision F Group Development Services Pty Ltd 27 May 2022 Demolition and Tree Removal / Retention Plan P00361 P00361-CI-S34-1061, Revision F Group Development Services Pty Ltd 27 May 2022 Erosion and Sediment Control Plan P00361 P00361-CI-S34-1101, Revision F Group Development Services Pty Ltd 27 May 2022 Erosion and Sediment Control Details P00361 P00361-CI-S34-1131, Revision F Group Development Services Pty Ltd 27 May 2022 Bulk Earthworks Plan P00361 P00361-CI-S34-1201, Revision F Group Development Services Pty Ltd 27 May 2022 Site Sections Sheet 1 P00361 P00361-CI-S34-1231, Revision F Group Development Services Pty Ltd 27 May 2022 Site Sections Sheet 2 P00361 P00361-CI-S34-1232, Revision F Group Development Services Pty Ltd 27 May 2022 Site Sections Sheet 3 P00361 P00361-CI-S34-1233, Revision F Group Development Services Pty Ltd 27 May 2022 Stormwater Catchment Plan Pre-development P00361 P00361-CI-S34-1301, Revision F Group Development Services Pty Ltd 27 May 2022 Stormwater Catchment Plan Ultimate Design P00361 P00361-CI-S34-1302, Revision F Group Development Services Pty Ltd 27 May 2022 Civil Works and Stormwater Drainage Overall Plan P00361 P00361-CI-S34-1321, Revision F Group Development Services Pty Ltd 27 May 2022 Civil Works and Stormwater Drainage Plan - Sheet 1 P00361 P00361-CI-S34-1322, Revision F Group Development Services Pty Ltd 27 May 2022 Civil Works and Stormwater Drainage Plan - Sheet 2 P00361 P00361-CI-S34-1323, Revision F Group Development Services Pty Ltd 27 May 2022 Civil Works and Stormwater Drainage Plan - Sheet 3 P00361 P00361-CI-S34-1324, Revision F Group Development Services Pty Ltd 27 May 2022 Civil Works and Stormwater Drainage Plan - Sheet 4 P00361 P00361-CI-S34-1325, Revision F Group Development Services Pty Ltd 27 May 2022 Bioretention Basin Plan and Sections Sheet 1 P00361 P00361-CI-S34-1411, Revision F Group Development Services Pty Ltd 27 May 2022 Bioretention Basin Plan and Sections Sheet 2 P00361 P00361-CI-S34-1412, Revision F Group Development Services Pty Ltd 27 May 2022 Bioretention Basin Plan and Sections Sheet 3 P00361 P00361-CI-S34-1413, Revision F Group Development Services Pty Ltd 27 May 2022 Bioretention Basin Plan and Sections Sheet 4 P00361 P00361-CI-S34-1414, Revision F Group Development Services Pty Ltd 27 May 2022 Typical Road Cross Sections P00361 P00361-CI-S34-1501, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 1 P00361 P00361-CI-S34-1521, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 2 P00361 P00361-CI-S34-1522, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 3 P00361 P00361-CI-S34-1523, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 4 P00361 P00361-CI-S34-1524, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 5 P00361 P00361-CI-S34-1525, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 6 P00361 P00361-CI-S34-1526, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 7 P00361 P00361-CI-S34-1527, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 8 P00361 P00361-CI-S34-1528, Revision F Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 9 P00361 P00361-CI-S34-1529, Revision A Group Development Services Pty Ltd 27 May 2022 Road Longitudinal Sections Sheet 10 P00361 P00361-CI-S34-1530, Revision F Group Development Services Pty Ltd 27 May 2022 Road 01 Retaining Wall Sections P00361 P00361-CI-S34-1631, Revision F Group Development Services Pty Ltd 27 May 2022 Retaining Wall Longitudinal Sections – Sheet 1 P00361 P00361-CI-S34-1632, Revision E Group Development Services Pty Ltd 27 May 2022 Retaining Wall Longitudinal Sections – Sheet 2 P00361 P00361-CI-S34-1633, Revision E Group Development Services Pty Ltd 27 May 2022 Street Tree Planting Plan P00361 P00361-CI-S34-1701, Revision F Group Development Services Pty Ltd 27 May 2022 Street Tree Planting Details P00361 P00361-CI-S34-1721, Revision F Group Development Services Pty Ltd 27 May 2022 Amended Landscape Plans Cover Sheet 191113 LDA-00, Revision M Geoscapes Landscape Architects 31 May 2022 Streetscape Masterplan & Tree Schedule 191113 LDA-01, Revision M Geoscapes Landscape Architects 31 May 2022 Streetscape Sections AA & BB & Tree Imagery 191113 LDA-02, Revision M Geoscapes Landscape Architects 31 May 2022 Streetscape Sections CC & DD 191113 LDA-03, Revision M Geoscapes Landscape Architects 31 May 2022 Park Concept Plan 191113 LDA-04, Revision M Geoscapes Landscape Architects 31 May 2022 Pocket Park Concept Plan 191113 LDA-05, Revision M Geoscapes Landscape Architects 31 May 2022 Pocket Park Section & Imagery 191113 LDA-06, Revision M Geoscapes Landscape Architects 31 May 2022 Specifications & Typical Landscape Details & CPW Plant Schedule 191113 LDA-07, Revision M Geoscapes Landscape Architects 31 May 2022 Reports/Supporting Documentation Document Name Date Prepared by Tree Inspection Report 22 April 2022 Treehaven Environscapes Amended Concept Stormwater and Water Quality Management Report 29 April 2022 Group Development Services Pty Ltd Overland Flow Flood Study Report 4 May 2022 GRC Hydro Bushfire Protection Assessment 3 May 2021 Eco Logical Australia Detailed Site Investigation 14 May 2020 ERM Services Australia Detailed Site Investigation 23 February 2021 Dirt Doctors Geotechnical Testing Services Amended Waste Management Plan March 2022 Auswide Consulting Biodiversity Development Assessment Report 14 March 2022 Cumberland Ecology Fauna Management Plan 13 March 2022 Cumberland Ecology Vegetation Management Plan 14 March 2022 Cumberland Ecology Road Safety Audit 19 January 2022 DC Traffic Engineering 1. The amended development application documents listed above were lodged on the NSW planning portal on 10 June 2022. 2. The amended development application was filed with the Court on 6 June 2022. 1. The Court orders that: 1. The appeal is upheld. 2. The Applicant pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $40,000. 3. Development Consent is granted to DA/21/0323 for a staged Community Title subdivision to create 119 residential lots, 1 residue lot and 4 super lots, civil works, creation of a new park and associated landscaping at 46-66 O'Connell Street, Caddens, subject to the conditions contained in Annexure 'A'. ………………………. J Gray Commissioner of the Court ​​​​​​​Annexure A.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: 24 June 2022