Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2023] NSWLEC 1735 Hearing dates: Conciliation conference on 28 November 2023 Date of orders: 06 December 2023 Decision date: 06 December 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The Appeal is upheld. (2) Development Application No DA-21-02301, as amended, for the demolition of existing structures, subdivision of land into 18 Torren title lots, comprising 17 Torrens title residential lots and 1 residue lot for primary production, removal of trees, construction of a public road, and associated site works is determined by the grant of development consent on land legally described as Lot 32 in DP 1189527 and known as 98 Junction Road, Grantham Farm, subject to the conditions at Annexure A. (3) The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed. Catchwords: APPEAL – development application – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.11, 8.15 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 9.3, 9.4, 9.5 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Precincts – Central River Cities) 2021, Appendix 7 ss 2.3, 2.6, 2.6A, 4.1AB, 4.1AD, 6.1 Blacktown Local Environmental Plan 2015, cll 2.6, 7.5 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Smith (Applicant) S Berveling (Respondent) Solicitors: Macpherson Kelley (Applicant) Matthews Folbigg Lawyers (Respondent) File Number(s): 2022/292230 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures, subdivision of land into 18 lots (comprising 17 residential lots and one residue lot for primary production), removal of trees, construction of a public road and associated site works at 98 Junction Road, Grantham Farm, legally described as Lot 32 in DP 1189527 (site). 2. The proceedings are brought by the applicant under ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application No DA-21-02301 (DA) by Blacktown City Council (Council). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties, under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 November 2023. I presided over the conciliation conference. 2. At the conciliation conference, the parties explained the particulars of an agreement reached between them, as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement involved certain amendments to the proposal which have been approved by Council under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 3. The decision agreed upon between the parties is for the grant of development consent to the DA as amended, under s 4.16 of the EPA Act, subject to certain agreed conditions. 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. 4. There are certain legal thresholds which require attention before this function can be exercised. The parties' signed agreement is supported by an agreed statement of jurisdictional prerequisites. This statement is intended to assist the Court by indicating the reasoning behind the parties' agreed position that their agreement involves a decision, in relation to the determination of the DA, that the Court could have made in the proper exercise of its functions. Jurisdiction 1. Noting the advice of the parties intended to assist, below I work through matters relating to jurisdiction, where I ultimately find that I agree with the parties that their agreed position, in relation to the determination of the DA, involves a decision which the Court has jurisdiction to put into effect. Integrated Development 1. The parties advise that the DA requires a Bushfire Safety Authority (BSA) pursuant to s 100B of the Rural Fires Act 1997 (RF Act). The appropriate referrals have been made and NSW Rural Fire Services has issued the BSA and, relevantly, its general terms of approval (which have been appropriately referenced in the parties' agreed consent conditions). Environmental Planning Instruments Relationships between environmental planning instruments 1. The site can be understood to be separated into two quite distinct areas. The western area is zoned R2 Low Density Residential under State Environmental Planning Policy (Precincts – Central River Cities) 2021 (Central River City SEPP). The eastern area is zoned RU4 Primary Production Small Lots under Blacktown Local Environmental Plan 2015 (BLEP). These two areas are separated by land zoned SP2 Drainage (under Central River Cities SEPP) and already acquired by Council. 2. The eastern area of the site would remain essentially unchanged with the DA. However, here I note that subdivision is permissible under cl 2.6 of BLEP and the zone objectives for the relevant Zone RU4 have been considered. I also note the provisions of cl 7.5 of BLEP, relating to essential services. On the advice of the parties, I am satisfied in relation to cl 7.5, in that no development is proposed on the eastern area of the site. I also note that the eastern area of the site does front Windsor Road and there is physical access available to it (for example for the purposes of slashing). 3. The provisions of Appendix 7 – Alex Avenue and Riverstone Precinct Plan 2010, under Central River City SEPP, apply to the western area of the site, where the essence of the proposed development would be occurring. Alex Avenue and Riverstone Precinct Plan 2010 1. Subdivision is permissible under s 2.6 and demolition is permissible under s 2.6A. I have had regard to the zone objectives for Zone R2 mindful of s 2.3. 2. Section 4.1AB, relating to minimum lot sizes, applies. While s 4.1AB(3) provides for, relevantly, a minimum lot size for a dwelling house of 300m2, s 4.1AD opens the door to the grant of consent for lots down to 225m2, provided the consent authority is satisfied that the lot will contain a sufficient building envelope to enable the erection of a dwelling house on the lot. In this instance the minimum lot size under the amended DA would be 250m2 and a building envelope plan has been prepared which indicates the capability of each lot to accommodate a dwelling under the applicable planning controls. I agree with the parties that the requirements of s 4.1AD have been met and there is power to grant consent notwithstanding the provisions of s 4.1AB. 3. Section 6.1 relates to public utility infrastructure. I accept the advice of the parties in relation to its availability and am satisfied that public utility infrastructure that is essential for the proposed development is available, or that adequate arrangements have been made to make that infrastructure available when required. State Environmental Planning Policy (Resilience and Hazards) 2021 1. 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. A Stage 1 Preliminary Site Contamination Investigation Report accompanied the Class 1 Application and found that the site is considered to have a low risk of soil and groundwater contamination. I accept the advice of the parties that the site is suitable for the development and relevant requirements of s 4.6 are met. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 applies in relation to vegetation clearing, however no jurisdictional factors arise in regard to it. Former Chapter 9 (Hawkesbury-Nepean River) applies to the proposed development having regard to relevant savings and transitional provisions. Section 9.3(1) requires the consideration of the matters in ss 9.4 and 9.5, which are applicable to the Amended DA. I accept the advice of the parties that the relevant matters have been given consideration. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. The parties advise that the DA was referred to Transport for New South Wales which raised no objections to the development, subject to conditions. 2. Section 2.119 applies, as the site has a frontage to Windsor Road, which is a classified road. I am satisfied in relation to the relevant matters at s 2.119(2), in that: * The vehicular access to the R2 Zone of the site is proposed through a new road off Junction Road (rather than off Windsor Road). * There is agreement from relevant experts that there would be no impact on the safety, efficiency, and ongoing operation of Windsor Road as a result of the proposal. * There is agreement from relevant experts in relation to acoustic recommendations for future dwellings having regard to s 2.119(2)(c). 1. I note also that, while not directly applicable, attention has been given to s 2.120 in relation to road noise implications. The parties advise there has been expert review and interpretation of relevant "guidelines that are issued by the Planning Secretary" (in particular: Department of Planning – Developments near Rail Corridors or Busy Roads – Interim Guideline) to the satisfaction of Council. Other provisions of s 4.15(1) of the EPA Act 1. The parties have also indicated that due consideration has been given to other relevant matters at s 4.15(1) of the EPA Act. I mention the parties' advice that two objecting submissions were received and that due consideration has been given to each of them. Copies of the submissions were also provided to the Court. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. * The Court notes: 1. The Council, as the relevant consent authority, has approved (under s 38 of the Environment Planning and Assessment Regulation 2021) the Applicant amending Development Application No DA-21-02301 in accordance with the amended plans and documents lodged described below: Drawing No and Revision Title Prepared by Date Subdivision Plan 1 Drawing No DA01, Revision 5 site Analysis The Bathla Group 21 September 2023 Drawing No DA02, Revision 5 Subdivision Plan The Bathla Group 21 September 2023 Drawing No. DA03, Revision 4 Building Envelope Plan The Bathla Group 23 February 2023 Survey Plan 2 Reference: 8886, Issue A 8886 98 Junction Road Grantham Farm Detail Survey SDG Pty Ltd 17 February 2023 Engineering Plans 3 Drawing No. 210079-01-DA-C01.01, Revision 6 Cover Sheet and Drawing Schedule Enspire Solutions Pty Ltd 10 March 2023 Drawing No. 210079-01-DA-C01.21, Revision 6 Specification Notes 10 March 2023 Drawing No. 210079-01-DA-C03.01, Revision 6 Demolition, Erosion and Sedimentation Control Plan 10 March 2023 Drawing No. 210079-01-DA-C03.21, Revision 6 Erosion and Sedimentation Control Details 10 March 2023 Drawing No. 210079-01-DA-C04.01, Revision 7 Cut and Fill Plan and Sections 2 May 2023 Drawing No. 210079-01-DA-C05.01, Revision 7 siteworks and Stormwater Management Plan 2 May 2023 Drawing No. 210079-01-DA-C06.01, Revision 6 Road Typical Cross Sections and Longitudinal Sections 10 March 2023 (Revision 7) Drawing No. 210079-01-DA-C14.01, Revision 7 siteworks Details 10 March 2023 Drawing No. 210079-01-DA-C17.01, Revision 5 Stormwater long sections Sheet 01 2 May 2023 Drawing No. 210079-01-DA-C17.02, Revision 5 Stormwater Long Sections Sheet 02 2 May 2023 Drawing No. 210079-01-DA- C20.01, Revision 6 Catchment Plan 10 March 2023 Reports / Documents 4 Response to Statement of Facts and Contentions Rhelm Pty Ltd 3 February 2023 5 Civil Engineering & Stormwater Management Report Enspire Pty Ltd 10 March 2023 1. The Court orders that: 1. The Appeal is upheld. 2. Development Application No DA-21-02301, as amended, for the demolition of existing structures, subdivision of land into 18 Torren title lots, comprising 17 Torrens title residential lots and 1 residue lot for primary production, removal of trees, construction of a public road, and associated site works is determined by the grant of development consent on land legally described as Lot 32 in DP 1189527 and known as 98 Junction Road, Grantham Farm, subject to the conditions at Annexure A. 3. The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed. P Walsh Commissioner of the Court ********** Annexure A Amendments 08 January 2024 - Pursuant to UCPR r 36.17, the orders at [23] have been amended. 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: 08 January 2024