Land and Environment Court New South Wales Medium Neutral Citation: UPG 368 Pty Ltd v Blacktown City Council [2024] NSWLEC 1329 Hearing dates: Conciliation Conference 4 June 2024 Date of orders: 18 June 2024 Decision date: 18 June 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is granted leave to file the Amended Development Application referred to in Note 2 with the Court. (2) The Appeal is upheld. (3) Development Application No. DA-23-00022, Torrens title subdivision into 2 super lots, construction of public roads, tree removal, stormwater drainage and associated site works on land legally described as Lot 66 in DP30186 and known as 58 Tallawong Road, Tallawong NSW 2762, is determined by the grant of development consent subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPEAL – Torrens title superlot subdivision – conciliation conference – agreement between the parties - orders Legislation Cited: Biodiversity Conservation Act 2016, Pt 7, 8, s 7.6 Environmental Planning and Assessment Act 1979, ss 4.16, 4.47, 8.7, 10.3 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B Threatened Species Conservation Act 1995, Pt 7, Sch 7. Water Management Act 2000 s 91 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, Div 2 State Environmental Planning Policy (Precincts—Central River City) 2021, Appendix 11, ss 2.2, 2.6, 5.3, 5.9, 6.1, 6.3, 6.4 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.99 Water Management (General) Regulation 2018, Sch Cases Cited: Stewart v Inner West Council [2023] NSWLEC 136 Texts Cited: Community Engagement Strategy and Community Participation Plan 2022-2024 Order to confer biodiversity certification on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, NSW Government Gazette No. 182, 14 December 2007 Category: Principal judgment Parties: UPG 368 Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) M Fozzard (Respondent) Solicitors: Macpherson Kelley (Applicant) Bilias and Associates (Respondent) File Number(s): 2023/118664 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 DA-23-00022 for Torrens title subdivision into 2 super lots, road construction, tree removal, stormwater drainage and associated site works (the Proposed Development) at 58 Tallawong Road, Tallawong legally described as Lot 66 in DP 30186 (the Site). 2. The hearing of this appeal commenced in Court on 4 June 2024. 3. The parties relied on the evidence in the following expert reports in response to the Amended Statement of Facts and Contentions filed by the Respondent on 1 February 2024 which raised 2 substantial contentions for refusal and 8 contentions that there was insufficient information to assess the application: 1. Recreation Planning and Design Joint Expert Report filed 30 May 2024 prepared by Brad Delapierre for the Applicant and Danica Bird for the Respondent (in response to recreation planning and design); 2. Town Planning Joint Expert Report filed 28 May 2024 prepared by Brad Delapierre for the Applicant and Judy Clark for the Respondent (in response to planning and natural areas); 3. Engineering Joint Expert Report filed 24 May 2024 prepared by Brandon Gathercole for the Applicant and Joseph Dagher and David Yee for the Respondent (regarding drainage). 1. Following substantial agreement between the experts the parties sought and 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 4 June 2024. I presided over the conciliation conference. 2. 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. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. 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 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 as to jurisdictional prerequisites. 6. The parties' experts agree that all contentions raised in the Respondent's Amended Statement of Facts and Contentions filed on 1 February 2024 (Amended SOFAC) have been resolved by the preparation of the: 1. amended plans and material contained in Exhibit EJF-1 upon which the Court granted the Applicant leave to rely on 8 December 2023; 2. the further amended plans and material referenced at [60]; and 3. the agreed conditions of consent at Annexure A. 1. Owner's consent is evidenced at Tab 2 of the Class 1 Application filed 13 April 2023 2. Consent is not sought for demolition as the Site benefits from a consent DA-22-01008 granted 25 August 2022 for "the demolition of dwelling and existing structures". 3. In accordance with the Respondent's Community Participation Plan, The Proposed Development was notified for 30 days from 8 February 2023 and 10 March 2023. One submission was received during this notification period concerning the extension of the cycleway connecting to Schofields Road and the parties have agreed to condition 7.13.1 which requires the paving width of the shared path to accommodate a cycleway. 4. The Site is mapped as Bushfire Prone Land (Vegetation Buffer) on the Bush Fire Prone Land (Non-EPI) Map under s 10.3 of the EPA Act. The Applicant relies on the Bushfire Assessment Report (Ref. 221150) dated 27 June 2022 prepared by Building Code & Bushfire Hazard Solutions Pty Ltd located at Tab 9 of the Class 1 Application) (Original Bushfire Assessment). 5. The Proposed Development was referred to NSW Rural Fire Services (RFS) as integrated development pursuant to s 4.47 of the EPA Act. On 13 March 2023, the RFS issued its general terms of approval (GTA) and the Bush Fire Safety Authority under s.100B of the Rural Fires Act 1997, based on the Original Bushfire Assessment. 6. On 23 January 2024, Building Code & Bushfire Hazard Solutions Pty Ltd issued a letter confirming that the fundamental parameters of the assessment outlined in the Original Bushfire Assessment remain accurate, including size and nature of the identified hazards and the applicable Asset Protection Zones, and that the Proposed Development has the ability to satisfy the conditions outlined in the GTA issued by the RFS on 13 March 2023. 7. The Proposed Development was referred to the Department of Planning and Environment - Water (DPE Water) as integrated development pursuant to s 4.47 of the EPA Act for the purpose of a controlled activity approval under s 91(2) of the Water Management Act 2000 because of a nearby watercourse. DPE Water assessed the Proposed Development and confirmed by letter dated 7 July 2023 that the Proposed Development is exempt because the proposed works are separated from the watercourse by a public road pursuant to the Water Management (General) Regulation 2018, Schedule 4[31]. 8. The provisions of the relevant environmental planning instrument that applies to the Site are set out in Appendix 11 'Blacktown Growth Centres Precinct Plan' (Precinct Plan) of the Central Rivers City SEPP because it is identified within Area 'F' on 'North West Growth Centre Land Application Map Sheet LAP_009', as part of the Riverstone East Precinct. Compliance with the Precinct Plan is addressed generally in the Amended Statement of Environmental Effects (SEE) prepared by the The Bathla Group and dated 21 May 2024. 9. The Site has the following multiple zonings pursuant to s 2.2 of the Precinct Plan and 'North West Growth Centre Land Zoning Map - Sheet LZ N_ 009' and as depicted in Fig 1 below: 1. the front larger portion of the Site facing Tallawong Road is zoned R3 Medium Density Residential, 2. the rear smaller portion of the Site is zoned RE1 Public Recreation, and 3. a small portion at the northwestern corner of the Site is zoned SP2 Infrastructure. 1. Fig 1: Overlay of Zoning and Subdivision extracted from the SEE 1. Subdivision is permissible with consent pursuant to s 2.6 of the Precinct Plan and the Proposed Development seeks to subdivide the Site into ab R3 zoned lot which will cater for future medium density residential development, and an RE1 zoned lot which will be dedicated to the Respondent for future public recreational uses. The SP2 zoned portion of the Site is proposed to be undisturbed and remain associated with the future Rouse Road extension adjoining the Site to the north. 2. Section 5.3 of the Precinct Plan regarding development new zone boundaries does not apply because the proposed roadworks is permissible in the RE1 Zone. 3. The Proposed Development seeks consent for, among other things, tree removal on the RE1 and SP2 zoned portions of the Site, which are prescribed under s 5.9(2) of the Precinct Plan and to which s 5.9 applies, as shown on the Tree Location Plan (Drawing A01, dated 28 October 2023) behind Appendix D of the Arboricultural Development Impact Assessment Report dated 28 October 2023 by Birds Tree Consultancy (Arborist Report). The Respondent has assessed the Arborist Report as satisfactory for the purposes of granting consent as required by s 5.9(3) of the Precinct Plan. 4. Section 6.1(1) of the Precinct Plan provides that '[d]evelopment consent must not be granted for development on land to which this Precinct Plan applies unless the consent authority is satisfied that any 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 it is required'. Public utility infrastructure is defined by s 6.1(3) to include infrastructure for the supply of water and electricity and the disposal and management of sewage. The Proposed Development is supported by the Survey Plan (Plan No.00000_A, dated 13 April 2021) filed at Tab 6 of the Class 1 Application and the Civil Engineering Plans (Revision G, dated 22 May 2024), which confirm that the supply of water and electricity and disposal and management sewage are available to the Site or that adequate arrangements have been made to make those infrastructure available when it is required. 5. Section 6.3 (Development controls—native vegetation retention areas) of the Precinct Plan applies to the part of the RE1 zoned portion of the Site that is identified to be within the native vegetation retention area shown on 'North West Growth Centre Native Vegetation Protection Map Sheet NVP_009'. Section 6.3(5) provides that a person must not clear native vegetation on land to which s 6.3 applies without development consent. Section 6.3(6) further provides that '[d]evelopment consent under this section is not to be granted unless the consent authority is satisfied of the following in relation to the disturbance of native vegetation— (a) that there is no reasonable alternative available to the disturbance of the native vegetation, (b) that as little native vegetation as possible will be disturbed, (c) that the disturbance of the native vegetation will not increase salinity, (d) that native vegetation disturbed for the purposes of construction will be reinstated where possible on completion of construction, (e) that the loss of remnant native vegetation caused by the disturbance will be compensated by revegetation on or near the land to avoid any net loss of remnant native vegetation, (f) that no more than 0.5 hectares of native vegetation will be cleared unless the clearing is essential for a previously permitted use of the land. 1. Section 6.3(7) finally provides that '[t]he consent authority must, when determining a development application in respect of the clearing of native vegetation on land within a zone under this Precinct Plan, have regard to the objectives for development in that zone'. 2. The Proposed Development proposes to retain the existing trees within the native vegetation retention area on the Site as identified by s6.3 of the Precinct Plan however, the Civil Engineering Plans, Revision G, dated 22 May 2024, show minor disturbance due to the proposed civil works at the western and southeastern boundaries of the native vegetation retention area on the Site. The Street Tree Plan, Drawing No. DA01, Revision C, dated 8 May 2024, shows revegetation works on and near the native vegetation retention area on the Site. 3. Upon assessment of these material, the Respondent is satisfied for the purposes of s.6.3(6), and, has given regard to the objectives for development in the RE1 zone as required by s.6.3(7), of the Precinct Plan. 4. Section 6.4 (Development controls—existing native vegetation) of the Precinct Plan applies to the part of the RE1 zoned portion of the Site that is identified to be within the existing native vegetation area shown on 'North West Growth Centre Native Vegetation Protection Map Sheet NVP_009'. Section 6.4(4) relevantly provides that '[t]he consent authority must not grant development consent for development on land to which this section applies unless it is satisfied that the proposed development will not result in the clearing of any existing native vegetation (within the meaning of the relevant biodiversity measures under Part 7 of Schedule 7 to the Threatened Species Conservation Act 1995)'. 5. The Proposed Development does not propose any works within the existing native vegetation area on the Site which will result in the clearing of any existing native vegetation (within the meaning of the relevant biodiversity measures under Part 7 of Schedule 7 to the Threatened Species Conservation Act 1995). 6. The Site is biodiversity certified land under Part 8 of the Biodiversity Conservation Act 2016 pursuant to the 'North West Growth Centre - Biodiversity Certification Map' contained in Schedule 2 of the Order by the Minister assisting the Minister for Climate Change, Environment and Water to confer biodiversity certification on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 gazetted on 14 December 2007 in NSW Government Gazette No.182. Therefore, pursuant to s 7.6, Part 7 of the Biodiversity Conservation Act 2016 does not apply to the Proposed Development (see s 7.6 of that Act). 7. Chapter 2 (vegetations in non-rural area) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Site being land in the Blacktown local government Area (see s.2.3(1)(a)) and zoned R3, RE1 and SP2 (see s 2.3(1)(b)), and contains provisions relating to the clearing of native vegetation. This chapter seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the appropriate preservation of trees and other vegetation. However, the Proposed Development proposes tree removals within the R3 and SP2 zoned portion of the Site, as shown on the Tree Location Plan (Drawing A01, dated 28 October 2023) behind Appendix D of the Arborist Report, to facilitate the engineering site works proposed. Accordingly, the matters arising under Chapter 2 of the Biodiversity and Conservation SEPP do not apply to the Development, and as such, is not a jurisdictional requirement for the Court to consider. The reasons for this is that the Applicant has not applied to remove the trees under a permit of Chapter 2, but rather seeks development consent to remove the trees under the EPA Act. In this regard, a separate permit or approval from Council or the Native Vegetation Panel under that policy is not required given clearing will be subject to a development consent that is being sought in these proceedings because the two schemes are mutually exclusive (see Stewart v Inner West Council [2023] NSWLEC 136, at [27] (Preston CJ)). 8. Chapter 6 of the Biodiversity and Conservation SEPP applies to the Development as the Site is located within the Hawkesbury-Nepean Catchment. The matters in Part 6.2 have been considered in the following materials accompanying the Further Amended DA: 1. Civil Engineering plans (Revision G) prepared by Indesco dated 22 May 2024; 2. Stormwater Management Report (Version 2.1) prepared by Indesco dated 23 May 2024; 3. Archaeological Due Diligence Assessment by McCardle Cultural Heritage dated 2 June 2022; 4. Arboricultural Development Impact Assessment Report dated 28 October 2023 by Birds Tree Consultancy; 5. Preliminary Site Investigation Report prepared by Geotesta dated 4 October 2022; 6. Geotechnical Site Investigation & Pavement Design Report prepared by Geotesta dated 7 October 2022; and 7. Dam Dewatering Report prepared by Geotesta dated 7 October 2022. 1. The provisions under Division 2 of Part 6.2 have been considered by the Respondent and it is satisfied that the Further Amended DA will have a neutral effect on the quality of water entering the Hawkesbury-Nepean Catchment, and the impact on waterflow to the natural waterbody will be minimised. The Respondent has also considered the controls under s.6.13 and is satisfied that the Further Amended DA will not have an impact on the condition, structure and floristics of native vegetation in the catchment and the development will maintain the scenic quality of the locality. 2. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the 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. The Applicant relies on the Preliminary Site Investigation (Report No. NE1417) (PSI) dated 4 October 2022 and prepared by Geotesta found at Tab 11 of the Class 1 Application. The PSI concludes that all contaminant concentrations of interest were found to be within the site assessment criteria, which indicate a low risk of widespread soil contamination, therefore the Site is suitable for the Proposed Development pending confirmation by a data gap assessment post demolition of the existing structures on the Site. 3. The Respondent is satisfied that the Site is or will be made suitable for the proposed use and the Proposed Development. The Agreed Conditions at 6.1 seek to give effect to the recommendations made by the PSI. 4. The Site is adjacent to the land at 47 Tallawong Road (Lot 310 in DP1254888) owned by Sydney Metro. The Respondent has assessed the Proposed Development having regard to s 2.99 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 and formed the view that that provision does not apply to the Development and the Site. In any event, the Respondent notified Sydney Metro on 8 February 2023, and Sydney Metro did not provide any response within 21 days of receiving the notice. 5. 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. I adopt the reasons given by the parties as set out in this judgment. 6. 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 the Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-23-00022 to rely upon the following further and amended plans and documents (Amended Development Application), as filed with the Court: Drawing No and Revision Title Prepared by Date Subdivision Plans 1 Drawing No. DA01 Revision 6 Site Plan The Bathla Group 28 May 2024 Drawing No. DA02 Revision 6 Subdivision Plan 28 May 2024 Drawing No. DA03 Revision 6 Zoning & Survey Plan Overlay 28 May 2024 Landscape Plans 2 Drawing No. DA01 Revision C Street Tree Plan The Bathla Group 8 May 2024 Civil Engineering Plans 3 Drawing No.000 Revision G Drawing Schedule INDESCO Undated Drawing No.010 Revision G Tree Removal and Demolition Plan 22 May 2024 Drawing No.020 Revision G Erosion and Sediment Control Plan 22 May 2024 Drawing No.021 Revision G Erosion and Sediment Control Basin Calculations 22 May 2024 Drawing No.022 Revision G Erosion and Sediment Control Notes and Details 22 May 2024 Drawing No.050 Revision G Bulk Earthworks Plan 22 May 2024 Drawing No.051 Revision G Bulk Earthworks Sections Sheet 1 of 2 22 May 2024 Drawing No.052 Revision G Bulk Earthworks Sections Sheet 2 of 2 22 May 2024 Drawing No.060 Revision G Engineering Plan 22 May 2024 Drawing No.061 Revision G Kerb Return Plan and Longitudinal Section 22 May 2024 Drawing No.070 Revision G Typical Road Sections 22 May 2024 Drawing No.071 Revision G Road Longitudinal Sections Sheet 1 of 2 Roads 2 & 3 22 May 2024 Drawing No.072 Revision G Road Longitudinal Sections Sheet 2 of 2 Tallawong Road 22 May 2024 Drawing No.082 Revision G OSD Basin Plan and Sections 22 May 2024 Drawing No.083 Revision G Stormwater Details 22 May 2024 Drawing No.084 Revision G Retaining Wall Long Sections Sheet 1 of 3 22 May 2024 Drawing No.085 Revision G Retaining Wall Long Sections Sheet 2 of 3 22 May 2024 Drawing No.086 Revision G Retaining Wall Long Sections Sheet 3 of 3 22 May 2024 Drawing No.090 Revision G Drainage Long Sections Sheet 1 of 2 22 May 2024 Drawing No.091 Revision G Drainage Long Sections Sheet 2 of 2 22 May 2024 Drawing No.095 Revision G Basin Decommissioning Plan 22 May 2024 Drawing No.096 Revision G Ultimate Drainage Plan 22 May 2024 Drawing No.100 Revision G Signage and Linemarking Plan 22 May 2024 Drawing No.110 Revision G Catchment Plan 22 May 2024 Drawing No.111 Revision G MUSIC Catchment Plan 22 May 2024 Drawing No.115 Revision G Vehicle Turning Plan 22 May 2024 Drawing No.200 Revision G Rouse Road Extension Overlay Plan 22 May 2024 Reports / documents 4 Stormwater Management Report (Version 2.1) INDESCO 23 May 2024 5 Statement of Environmental Effects (Amendment No.3) The Bathla Group 21 May 2024 Orders: 1. The Court orders: 1. The Applicant is granted leave to file the Amended Development Application referred to in Note 2 with the Court. 2. The Appeal is upheld. 3. Development Application No. DA-23-00022, Torrens title subdivision into 2 super lots, construction of public roads, tree removal, stormwater drainage and associated site works on land legally described as Lot 66 in DP30186 and known as 58 Tallawong Road, Tallawong NSW 2762, is determined by the grant of development consent subject to the conditions at Annexure A. E Espinosa Commissioner of the Court Annexure A 1. Subdivision Plans R06 2. Street Tree Plan 3. Civil Engineering Plans - 58 Tallawong Road Rev G 4. Statement of Environmental Effects - 58 Tallawong Road 5. Stormwater Management Report 58 Tallawong Road Rev 2.1 6. Arboriculture Assessment Report Rouse Hill 58 Tallawong Road 7. VMP 58 Tallawong Rd ROUSE HILL 8. Site Investigetion Report-58 Tallawong Road,Rouse Hill 9. Dam Dewatering Report - 58 Tallawong Road,Rouse Hill 10. Geotechnical Report-58 Tallawong Road,Rouse Hill 11. Waste Management Plan & Demolition Report_58 Tallawong road ********** Amendments 19 June 2024 - Incorrect names for the Counsel 21 June 2024 - Added initial of first name 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: 21 June 2024