Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Penrith City Council [2023] NSWLEC 1082 Hearing dates: Conciliation Conference 17 February 2023 Date of orders: 24 February 2023 Decision date: 24 February 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Appeal is upheld. (2) Development consent is granted to Development Application No. DA22/0217, for the construction of 16 industrial buildings and associated civil and site works on lots 4002 to 4007 and lots 4101 to 4110 approved in DA19/0704 on land legally described as Lot 1 in DP1226122 and known as 16 Chapman Street, Werrington, NSW, 2747, subject to the conditions at Annexure A. (3) The Applicant is directed to pay the Respondent's costs thrown away under s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,500 within 28 days. Catchwords: APPEAL – development application – construction of industrial buildings – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021 cll 37, 38 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010 cll 5.10, 7.1, 7.4 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 6.65, 9.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: A Johnson (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Sparke Helmore (Respondent) File Number(s): 2022/169109 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This appeal concerns a development application (DA22/0217) for the construction of 16 industrial buildings and associated civil and site works on land known as 16 Chapman Street, Werrington. The land is the subject of a development consent (DA 19/0704) for staged subdivision, and the development application proposes works on the future industrial lots 4002 to 4007 and lots 4101 to 4110, which will be created by the carrying out of that earlier development consent. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an 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 [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 17 February 2023. 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. That agreement reflects the signed agreement filed on 6 February 2023, and follows the Council's approval of an application for an amendment to a development application pursuant to cll 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments to the development application include, inter alia, design changes to soften the appearance of the façade as it presents to the future road, the combination of lots 4005 and 4006 to create an effective pedestrian access by an open plaza area, amendments to the retaining walls to reflect the approved topography and landform of the site, the removal of stacked car parking, and the provision of an Energy Efficiency & Ecologically Sustainable Design Report and an Acoustic Assessment. 4. The decision agreed upon is for the grant of a deferred commencement consent subject to conditions pursuant to s 4.16(1) and (3) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the background to the development application, how each of the contentions raised by the Council has been resolved by amendments to the development application, and each of the jurisdictional matters about which the Court must be satisfied. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. 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: * The development works the subject of this development application are proposed to be carried out on the land zoned IN2 Light Industrial, in which development for the purposes of industry is permissible with development consent, pursuant to the Penrith Local Environmental Plan 2010 (PLEP). * The proposed development complies with the height of building development standard in the PLEP. * The development is located in the vicinity of a local heritage item and the effect of the development on the heritage significance of the heritage items has been considered, as required by cl 5.10(4) of the PLEP. Due to the distance between the heritage item and the proposed buildings, I am satisfied that the proposed development does not unacceptably impact the heritage significance of the heritage items. * The development application includes earthworks, which comprise the cut and fill required for the construction of the buildings. Based on Phase 1 Contamination Assessment dated April 2007, the Supplementary Investigation report prepared by Douglas Partners for the shed dated 26 February 2020, the Phase 2 Environmental Assessment dated February 2009 and the information in the Jurisdictional Statement, I have considered the matters set out in cl 7.1(3) of the PLEP. * Based on the Energy Efficiency & Ecologically Sustainable Design Report dated September 2022, I have considered the matters set out in cl 7.4 of the PLEP concerning sustainable development. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on Phase 1 Contamination Assessment dated April 2007, the Supplementary Investigation report prepared by Douglas Partners for the shed dated 26 February 2020, and the Phase 2 Environmental Assessment dated February 2009, the site is suitable for the development. * Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development. Chapter 9 concerns the Hawkesbury-Nepean River system. Based on the documents accompanying the Class 1 Application, I have considered the matters required to be considered by s 9.3. * The development application was notified for the period 4 to 18 April 2022 and two submissions were received. I have considered the issues raised in those submissions. 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. The Respondent, as the relevant consent authority has agreed under cl 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application No. DA22/0217 in accordance with the amended plans and documents listed below: Drawing No and Revision Title Prepared by Date Architectural Plans 1 Dwg DA-00 Rev F Cover Sheet The Bathla Group 10 November 2022 Dwg DA-01-1 Rev D Compliance Table 1 20 October 2022 Dwg DA-01-2 Rev E Compliance Table 2 27 October 2022 Dwg DA-02 Rev B Site Analysis 20 September 2022 Dwg DA-03 Rev B Approved Subdivision Plan (DA 19/0704) 20 September 2022 Dwg DA-04 Rev F Master Plan 10 November 2022 Dwg DA-05 Rev F Materials and Finishes 10 November 2022 Dwg DA-06 Rev E Overall Elevation Plans 27 October 2022 Dwg DA-07 Rev E Overall Section Plans 27 October 2022 Dwg DA-10 Rev D Shadow Analysis 20 October 2022 Dwg DA-11 Rev D Pathway and Road Section 20 October 2022 Dwg DA-12 Rev D Height Compliance_Existing N.G.L 20 October 2022 Dwg DA-13 Rev D Height Compliance_Approved Subdivision Levels 20 October 2022 Dwg DA-14 Rev F Photo Montage_01 10 November 2022 Dwg DA-15 Rev F Photo Montage_02 10 November 2022 Dwg DA-16 Rev F Photo Montage_03 10 November 2022 Dwg DA-17 Rev F Photo Montage_04 10 November 2022 Dwg DA-18 Rev F Photo Montage_05 10 November 2022 Dwg DA-100 Rev D Level Contour_Lot 4002, 4003 20 October 2022 Dwg DA-101 Rev D Level Contour_Lot 4004 20 October 2022 Dwg DA-102 Rev D Level Contour_Lot 4005, 4006 20 October 2022 Dwg DA-103 Rev D Level Contour_Lot 4007 20 October 2022 Dwg DA-104 Rev D Level Contour_Lot 4101, 4102 20 October 2022 Dwg DA-105 Rev D Level Contour_Lot 4103, 4104 20 October 2022 Dwg DA-106 Rev D Level Contour_Lot 4105, 4106 20 October 2022 Dwg DA-107 Rev D Level Contour_Lot 4107, 4108 20 October 2022 Dwg DA-108 Rev E Level Contour_Lot 4109, 4110 27 October 2022 Dwg Lot 4002-0 Rev F Cover Sheet 10 November 2022 Dwg Lot 4002-1 Rev F Site Plan 10 November 2022 Dwg Lot 4002-2 Rev F Plans 10 November 2022 Dwg Lot 4002-3 Rev D Elevations 20 October 2022 Dwg Lot 4002-4 Rev D Sections 20 October 2022 Dwg Lot 4002-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4003-0 Rev F Cover Sheet 10 November 2022 Dwg Lot 4003-1 Rev F Site Plan 10 November 2022 Dwg Lot 4003-2 Rev F Plans 10 November 2022 Dwg Lot 4003-3 Rev D Elevations 20 October 2022 Dwg Lot 4003-4 Rev D Sections 20 October 2022 Dwg Lot 4003-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4004-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4004-1 Rev D Site Plan 20 October 2022 Dwg Lot 4004-2 Rev D Plans 20 October 2022 Dwg Lot 4004-3 Rev D Elevations 20 October 2022 Dwg Lot 4004-4 Rev D Sections 20 October 2022 Dwg Lot 4004-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4005 & 4006-0 Rev F Cover Sheet 10 November 2022 Dwg Lot 4005 & 4006-1 Rev F Site Plan 10 November 2022 Dwg Lot 4005 & 4006-2 Rev F Ground Level 10 November 2022 Dwg Lot 4005 & 4006-3 Rev F Upperground Level 10 November 2022 Dwg Lot 4005 & 4006-4 Rev F Level 1 10 November 2022 Dwg Lot 4005 & 4006-5 Rev F Roof 10 November 2022 Dwg Lot 4005 & 4006-6 Rev F Elevation 01 10 November 2022 Dwg Lot 4005 & 4006-7 Rev E Elevation 02 27 October 2022 Dwg Lot 4005 & 4006-8 Rev F Sections 10 November 2022 Dwg Lot 4005 & 4006-9 Rev F Material and Finishes 10 November 2022 Dwg Lot 4007-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4007-1 Rev D Site Plan 20 October 2022 Dwg Lot 4007-2 Rev D Plans 20 October 2022 Dwg Lot 4007-3 Rev D Elevations 20 October 2022 Dwg Lot 4007-4 Rev D Sections 20 October 2022 Dwg Lot 4007-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4101-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4101-1 Rev D Site Plan 20 October 2022 Dwg Lot 4101-2 Rev D Plans 20 October 2022 Dwg Lot 4101-3 Rev D Elevations 20 October 2022 Dwg Lot 4101-4 Rev D Sections 20 October 2022 Dwg Lot 4101-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4102-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4102-1 Rev D Site Plan 20 October 2022 Dwg Lot 4102-2 Rev D Plans 20 October 2022 Dwg Lot 4102-3 Rev D Elevations 20 October 2022 Dwg Lot 4102-4 Rev D Sections 20 October 2022 Dwg Lot 4102-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4103-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4103-1 Rev D Site Plan 20 October 2022 Dwg Lot 4103-2 Rev D Plans 20 October 2022 Dwg Lot 4103-3 Rev D Elevations 20 October 2022 Dwg Lot 4103-4 Rev D Sections 20 October 2022 Dwg Lot 4103-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4104-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4104-1 Rev D Site Plan 20 October 2022 Dwg Lot 4104-2 Rev D Plans 20 October 2022 Dwg Lot 4104-3 Rev D Elevations 20 October 2022 Dwg Lot 4104-4 Rev D Sections 20 October 2022 Dwg Lot 4104-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4105-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4105-1 Rev D Site Plan 20 October 2022 Dwg Lot 4105-2 Rev D Plans 20 October 2022 Dwg Lot 4105-3 Rev D Elevations 20 October 2022 Dwg Lot 4105-4 Rev D Sections 20 October 2022 Dwg Lot 4105-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4106-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4106-1 Rev D Site Plan 20 October 2022 Dwg Lot 4106-2 Rev D Plans 20 October 2022 Dwg Lot 4106-3 Rev D Elevations 20 October 2022 Dwg Lot 4106-4 Rev D Sections 20 October 2022 Dwg Lot 4106-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4107-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4107-1 Rev D Site Plan 20 October 2022 Dwg Lot 4107-2 Rev D Plans 20 October 2022 Dwg Lot 4107-3 Rev D Elevations 20 October 2022 Dwg Lot 4107-4 Rev D Sections 20 October 2022 Dwg Lot 4107-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4108-0 Rev D Cover Sheet 20 October 2022 Dwg Lot 4108-1 Rev D Site Plan 20 October 2022 Dwg Lot 4108-2 Rev D Plans 20 October 2022 Dwg Lot 4108-3 Rev D Elevations 20 October 2022 Dwg Lot 4108-4 Rev D Sections 20 October 2022 Dwg Lot 4108-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4109-0 Rev E Cover Sheet 27 October 2022 Dwg Lot 4109-1 Rev E Site Plan 27 October 2022 Dwg Lot 4109-2 Rev E Plans 27 October 2022 Dwg Lot 4109-3 Rev E Elevations 27 October 2022 Dwg Lot 4109-4 Rev E Sections 27 October 2022 Dwg Lot 4109-5 Rev F Material and Finishes 10 November 2022 Dwg Lot 4110-0 Rev F Cover Sheet 10 November 2022 Dwg Lot 4110-1 Rev F Site Plan 10 November 2022 Dwg Lot 4110-2 Rev F Plans 10 November 2022 Dwg Lot 4110-3 Rev E Elevations 27 October 2022 Dwg Lot 4110-4 Rev E Sections 27 October 2022 Dwg Lot 4110-5 Rev F Material and Finishes 10 November 2022 Landscape Plans 2 Dwg LPS34-23/86 Rev A Title Page Conzept Landscape Architects 11 November 2022 Dwg LPS34-23/86 Sheet LP-00 Rev A Landscape Master Plan Dwg LPS34-23/86 Sheet LP-01 Rev A Landscape Plan – Lot 4002, 4003 & 4004 Dwg LPS34-23/86 Sheet LP-02 Rev A Landscape Plan – Lot 4005 & 4006 Dwg LPS34-23/86 Sheet LP-03 Rev A Landscape Plan – Lot 4007, 4101 & 4102 Dwg LPS34-23/86 Sheet LP-04 Rev A Landscape Plan – Lot 4103, 4104, 4105 & 4106 Dwg LPS34-23/86 Sheet LP-05 Rev A Landscape Plan – Lot 4107, 4108, 4109, 4110 Dwg LPS34-23/86 Sheet LP-06 Rev A Landscape Plan – Cul-de-sac Dwg LPS34-23/86 Sheet LP-07 Rev A Detail & Specification Dwg LPS34-23/86 Sheet LP-08 Rev A Planting Detail – Matrix Dwg LPS34-23/86 Sheet LP-09 Rev A Landscape Section Reports 3 Energy Efficiency & Ecologically Sustainable Design Report SLR Consulting Australia Pty Ltd 28 September 2022 4 Acoustic Assessment Acoustic Dynamics 21 September 2022 1. The Court orders that: 1. The Appeal is upheld. 2. Development consent is granted to Development Application No. DA22/0217, for the construction of 16 industrial buildings and associated civil and site works on lots 4002 to 4007 and lots 4101 to 4110 approved in DA19/0704 on land legally described as Lot 1 in DP1226122 and known as 16 Chapman Street, Werrington, NSW, 2747, subject to the conditions at Annexure A. 3. The Applicant is directed to pay the Respondent's costs thrown away under s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,500 within 28 days. ………………………. J Gray Commissioner of the Court Annexure A (316273, 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 February 2023