Land and Environment Court New South Wales Medium Neutral Citation: Tallawong Road Pty Ltd v Blacktown City Council [2023] NSWLEC 1564 Hearing dates: Conciliation conference on 31 August 2023 Date of orders: 26 September 2023 Decision date: 26 September 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away, as agreed or assessed, as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Application DA-21-01394 (as amended) for the Torrens title residential subdivision of 1 lot into 61 lots including demolition, tree removal, new roads, construction of 50 dwellings on Lots 109-113, 115-134, 135-154 & 156-160, associated site earth and drainage works and retaining walls at Lot 46 Deposited Plan 30186, 165 Guntawong Road, Rouse Hill, is determined by the grant of development consent, subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – Torrens Title Subdivision – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, s 7.2 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Precincts-Central River City) 2021, s 3.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sydney Regional Growth Centres) 2006, Appendix 12, cll 2.2, 4.1AA, 4.1B, 6.1 Category: Principal judgment Parties: Tallawong Road Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: C Gough (Solicitor) (Applicant) G Farland (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 2022/66988 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Tallawong Road Pty Ltd (the Applicant) against the Blacktown City Council's (the Respondent) deemed refusal of Development Application number DA-21-01394. 2. The Development Application, as amended, seeks consent for the Torrens title residential subdivision of 1 lot into 61 lots including demolition, tree removal, new roads, construction of 50 dwellings on Lots 109-113, 115-134, 135-154 & 156-160, associated site earth and drainage works and retaining walls at Lot 46 Deposited Plan 30186, 165 Guntawong Road, Rouse Hill. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 31 August 2023. 4. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable. The parties' agreement was to seek orders granting Development Consent to the Development Application, subject to conditions. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 6. At the time the Development Application was lodged to the Council, State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP SRGC) was in operation. On 1 March 2022, the SEPP SRGC was repealed, and its provisions were transferred to the State Environmental Planning Policy (Precincts-Central River City) 2021 (Central River City SEPP). As the development application was lodged on 26 July 2021, the application is to be assessed under SEPP SRGC pursuant to the savings provisions in s 3.9 of Central River City SEPP. In particular, Appendix 12 - Blacktown Growth Centres Precinct Plan applies to the development. 1. Pursuant to cl 2.2 in Appendix 12, the Site is zoned R3 Medium Density Residential as shown on the Land Zoning Map. 2. Clause 4.1AA(2) in Appendix 12, permits lots equal to, or greater than, 225m², if the consent authority is satisfied that such a lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. The application was accompanied by a Better Environment Plan for each lot less than 300m². 3. Clause 4.1B in Appendix 12, requires a density greater than 25 dwellings per hectare. The proposal creates 61 residential lots over a net developable area of 2.023 hectares resulting in a density of 30.14 dwellings per hectare. 4. Pursuant to cl 6.1 in Appendix 12, Development Consent cannot be granted unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available and adequate arrangements have been made to make that infrastructure available when required. The parties agree that all of the essential services listed in cl 6.1 are either available, or that adequate arrangements have been made to make them available, when required. 5. The amended development application was notified by the Respondent to property owners and occupiers in the locality between 31 May 2022 and 14 June 2022. No submissions were received. The Respondent is satisfied that the further amendments to the application do not trigger a requirement for renotification. 6. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Applicant has prepared and submitted a report prepared by Woodlots and Wetlands Pty Ltd dated April 2021 (Assessment of Contamination and Salinity Risks version 4.2021). As a result of the assessment and outcomes in this report, I am satisfied that the requirements of the Resilience and Hazards SEPP have been met. 7. An Arboricultural Impact Assessment prepared by Urban Tree Management dated 17 April 2021 accompanied the development application and dealt with the legislative requirements. A further Arboricultural Impact Assessment Addendum, dated 20 April 2023, was also provided with the application. The parties agree that the proposed development is not likely to significantly affect threatened species within the meaning of s 7.2 of the Biodiversity Conservation Act 2016 and that the development application is not required to be accompanied by a biodiversity development assessment report. The parties agree and I am satisfied that the application has considered the relevant biodiversity considerations. 1. 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' agreement. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. 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. The following orders give effect to the agreement reached by the parties. 3. The Court notes: 1. Blacktown City Council, as the relevant consent authority, has agreed, under section 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application DA-21-01394. 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away, as agreed or assessed, as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application DA-21-01394 (as amended) for the Torrens title residential subdivision of 1 lot into 61 lots including demolition, tree removal, new roads, construction of 50 dwellings on Lots 109-113, 115-134, 135-154 & 156-160, associated site earth and drainage works and retaining walls at Lot 46 Deposited Plan 30186, 165 Guntawong Road, Rouse Hill, is determined by the grant of development consent, subject to the conditions set out in Annexure A. Stuart Harding Acting Commissioner of the Court Annexure A ********** 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: 26 September 2023