Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1471 Hearing dates: Conciliation conference on 9 August 2023 Date of orders: 19 September 2023 Decision date: 19 September 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Deferred development consent is granted to Development Application No. DA0133/22, as amended, for the demolition of existing structures, tree removal, earthworks, construction of public roads, construction of 2 temporary stormwater detention basins and the staged Torrens title subdivision of land into 112 single dwelling residential lots zoned R2 Low Density Residential, one single dwelling residential lot zoned E4 Environmental Living, one lot zoned RE1 for future public recreation, one lot Zoned SP2 Infrastructure for future Classified Road and 2 lots for temporary stormwater detention, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPEAL – Demolition – Torren title subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, Pts 4, 5 Environmental Planning and Assessment Regulation 2021, cl 38 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, 100B State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 12, ss 2.6, 2.7, 4.1, 4.1AC, 4.1I, 6.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Sch 2 Threatened Species Conservation Act 1995, ss 126H, 126I Texts Cited: Hawkesbury Development Control Plan 2022 Category: Principal judgment Parties: Universal Property Group Pty Ltd ACN 078297748 (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: J Reid (Applicant) A Seton (Solicitor)(Respondent) Solicitors: Macpherson Kelley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/211239 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA0133/22 which seeks consent for the demolition of existing structures, tree removal, earthworks, construction of public roads, landscaping and subdivision of the land into 116 lots over 2 stages (the Proposed Development) at Lot 11 DP1274807, with a street address of 202 Commercial Road, Vineyard, Lot 3 DP224860, with a street address of 208 Commercial Road, Vineyard, Lot 1 DP244901, with a street address of 216 Commercial Road, Vineyard, Lot 2 DP244901, with a street address of 226 Commercial Road, Vineyard and Lot 3 DP244901, with a street address of 1 Putland Place, Vineyard (the Site). 2. The proposed subdivision will result in 112 Torrens title lots for residential development with 2 Torrens title lots for temporary stormwater detention (proposed Lot 80 and 75) and one Torrens title lot zoned RE1 for future public recreation (proposed Lot 115) approximately 3,484m2 and an additional residue lot containing land zoned E4 to be developed in the future in conjunction with adjoining land to the south (proposed Lot 116). 3. Each residential lot is proposed to contain one dwelling per lot, except for proposed lots 9 and 113 which are nominated as dual occupancy lots. 4. Temporary onsite stormwater detention basins are proposed to be constructed on proposed Lot 80 and Lot 75 which are expected to be decommissioned once downstream permanent drainage infrastructure has been constructed. It is noted that consent is not sought for the proposed second stage of development and the parties refer to the Note to Condition 2 at Annexure A which refers to a concept plan indicating that upon decommissioning of the stormwater detention basins, development consent may be sought for these lots to be subdivided into 18 Torrens title lots subject to a future development application (stage 2). 5. The proposed residential lots are to be served by a series of 6 internal local roads to be constructed as part of the development application which connect to the existing road network via either Commercial Road to the north or Putland Place to the east. 6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 9 August 2023. I presided over the conciliation conference. 7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 8. 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. 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. 9. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of a number of provisions in the State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an Agreed Statement from which I have included relevant considerations as my reasons below. 11. The development application (DA) was made by Universal Property Group Pty Ltd on 19 April 2022 with the written consent of the owners of the Site. 12. The DA was lodged as integrated development pursuant to s 4.46 of the EPA Act, seeking approval under s 100B of the Rural Fires Act 1997 (RFA) and on 4 October 2022, the Rural Fire Service issued General Terms of Approval for the Development pursuant to s100B of the RFA which are attached to the Conditions of Consent. 13. The Central River City SEPP includes at Appendix 12 the Hawkesbury Growth Centres Precinct Plan (Hawkesbury Precinct Plan) which provides relevant planning controls applicable to the Proposed Development. 14. The Site has the following five zonings under the Hawkesbury Precinct Plan: 1. R2 Low Density Residential; 2. E4 Environmental Living; 3. SP2 Infrastructure – Classified Road; 4. SP2 Infrastructure – Local Road; and 5. RE1 Public Recreation. 1. Subdivision is permitted with consent under s 2.6 of the Hawkesbury Precinct Plan and demolition work is also permitted with consent under s 2.7 of the Hawkesbury Precinct Plan. 2. The Lot Size Map referred to in s 4.1 of the Hawkesbury Precinct Plan applies to the south eastern corner for the Site and identifies a minimum lot size requirement of 600m2. An extract of the Lot Size Map is provided at Figure 7 of Council's Amended Statement of Facts and Contentions (ASOFAC) filed 20 July 2023. The area identified on the Lot Size Map measures approximately 1,043m2 and is proposed to be created as a residue Lot No. 116. Lot 116 complies with the minimum lot size requirement. 3. The Site is mapped to have an "O2" dwelling density range and in this area, pursuant to s 4.1AC of the Hawkesbury Precinct Plan, the minimum lot size for a dwelling house is 300m2. The proposed lots have a minimum lot size of 300m2. I have considered the Subdivision Plan filed with Ex EJF1 at Tab 1 and am satisfied that the Proposed Development complies with s 4.1AC. 4. The Residential Density Map referred to in s 4.1I(3) of the Hawkesbury Precinct Plan applies to the Site and identifies a dwelling density range of 15 (minimum) to 18 (maximum) per hectare for part of the Site. An extract of the Residential Density Map is provided at Figure 6 in the ASOFAC. I have considered drawing DA 07 Revision 3 and am satisfied that the Proposed Development is compliant in this regard. 5. Section 6.1 of the Hawkesbury Precinct Plan relates to Public utility infrastructure and I am satisfied that water, sewer and electricity services are available to the Site. The services will be connected to the proposed development in accordance with the relevant Authority requirements and in accordance with consent conditions 123, 124 and 125. I have considered the letter from Sydney Water dated 7 June 2022 indicating that the water main and wastewater reticulation main extensions will be available to service the proposed development when it is required (Respondent's Bundle of Documents, Tab 18 filed 25 July 2023). 6. The Proposed Development seeks consent to remove native vegetation on the Site. The Site is not identified on the Biodiversity Values Map however, the Site is identified on the biodiversity certification map for the North West Growth Centre in Sch 2 of the Order issued by the Minister and gazetted on 14 December 2007 to confer biodiversity certification on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, pursuant to s 126H of the former Threatened Species Conservation Act 1995 (TSC Act), as shown in Figure 3 of ASOFAC. 7. Pursuant to s 126I of the TSC Act, developments or activities proposed to be undertaken within the certified areas do not need to undertake assessment of impacts on threatened species, populations and ecological communities, or their habitats, that would normally be required by Pts 4 or 5 of EPA Act. 8. There is also consideration of a jurisdictional prerequisite provided for in the terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) which provides that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. 9. In satisfaction of s 4.6, the Applicant has provided a Stage 1 Preliminary Site Contamination Investigation Report (Tab 12 of the Class 1 Application) and a Contamination Site Investigation Report (Tab 13 of the Class 1 Application). Based on the assessments undertaken as part of the site investigations, the Site is considered to have a low potential for environmental impacts on the soil. Accordingly, the Site is suitable for future residential development provided that the dam is remediated. In that regard, the Applicant has provided a Dam Dewatering Report prepared by Geotesta dated 7 March 2022 (Tab 16 of the Class 1 Application) which has been prepared for the Site to ensure the dewatering and remediation of the dam is undertaken in a safe manner in accordance with relevant legislations and guidelines. In addition, consent conditions 2(b), 40(o), 28, 58 and 98 have been imposed to ensure the works are completed safely and in accordance with the Dam Dewatering Report. 10. In accordance Chapter 3 of Hawkesbury Development Control Plan 2022, the DA was notified and advertised from 2 June 2022 to 16 June 2022. Two submissions were raised objecting to the DA which are summarised at paragraph 39 of the ASOFACs. The Amended DA was not re-notified as the Respondent formed the opinion that the amendments did not intensify or change the external impact of the Proposed Development. 11. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 12. 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. Notations: 1. The Court notes that: 1. The Court notes that the Respondent, as the relevant consent authority has agreed, under clause 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA0133/22 to rely upon the following amended plans and documents (Amended Development Application): Drawing No and Revision Title Prepared by Date Commercial Road Concept T Intersection with Menin Road 1 Plan 022 Revision A Commercial Road Concept T Intersection with Menin Road Orion Consulting 31 July 2023 Plan 023 Revision A Commercial/Menin Road Concept T Intersection Turning Paths Design Vehicle 31 July 2023 Plan 024 Revision A Commercial/Menin Road Concept T Intersection Turning Paths Check Vehicle 31 July 2023 Putland Place Surcharge Pit Concept Design 2 Plan 025 Revision A Putland Place Surcharge Pit Concept Design 28 July 2023 Engineering Plans 3 DA001 Revision G General Arrangement Plan, Notes and Legend Orion Consulting 14 July 2023 DA003 Revision G Site Regrading Plan 14 July 2023 DA101 Revision F Sediment & Erosion Control Plan Sheet 02 of 02 14 July 2023 DA103 Revision C Sediment & Erosion Control Basin Catchment Plan 14 July 2023 DA201 Revision E Engineering Plan Sheet 02 of 03 14 July 2023 DA300 Revision D Typical Cross Sections Sheet 01 of 02 14 July 2023 DA301 Revision A Typical Cross Sections Sheet 01 of 02 19 May 2023 Reports / documents 4 Grant of Consent and Authority James Phillip Cassidy 1 August 2022 1. The Applicant filed the Amended Development Application with the Court on 7 and 9 August and 7 September 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Deferred development consent is granted to Development Application No. DA0133/22, as amended, for the demolition of existing structures, tree removal, earthworks, construction of public roads, construction of 2 temporary stormwater detention basins and the staged Torrens title subdivision of land into 112 single dwelling residential lots zoned R2 Low Density Residential, one single dwelling residential lot zoned E4 Environmental Living, one lot zoned RE1 for future public recreation, one lot Zoned SP2 Infrastructure for future Classified Road and 2 lots for temporary stormwater detention, subject to the conditions at Annexure A. E Espinosa Commissioner of the Court Annexure A Plans ********** 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: 20 September 2023