Land and Environment Court New South Wales Medium Neutral Citation: SPEC Homes Pty Ltd v Camden Council [2024] NSWLEC 1729 Hearing dates: Conciliation conference on 21 October 2024 Date of orders: 12 November 2024 Decision date: 12 November 2024 Jurisdiction: Class 1 Before: Miller AC Decision: The orders of the Court are: (1) The appeal is upheld. (2) The Applicant is granted leave to file the Amended Development Application referred to in paragraph [11] above with the Court. (3) The applicant is to pay the respondent's costs thrown away as a consequence of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. (4) Development Application No. 2022/917/1 for the for the replacement of the existing grassed stormwater drainage channel with a box culvert and hardstand areas for future car parking purposes associated with the use of the premises at 11-15 Orielton Road (Lot 24 DP 1179843) and 44 Topham Road, Smeaton Grange (Lot 72 DP 1179843), is determined by the grant of consent subject to the conditions contained in Annexure A. Catchwords: APPEAL – development application – drainage channel – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Camden Local Environmental Plan 2010, cl 5.21 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, Pts 9.2, 9.3 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.138 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: SPEC Homes Pty Ltd (Applicant) Camden Council (Respondent) Representation: Counsel: J Cole (Solicitor Applicant ) C Rose (Solicitor Respondent) Solicitors: Messenger Cole Solicitors (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/300665 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal of Development Application No 2022/917/1 for the replacement of the existing grassed stormwater drainage channel with a box culvert and hardstand areas for future car parking purposes associated with the use of the premises at 11-15 Orielton Road (Lot 24 DP 1179843) and 44 Topham Road, Smeaton Grange (Lot 72 DP 1179843) by Camden Council. 2. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference which I presided over was held on 21 October 2024. 3. The Respondent, as the relevant consent authority has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending DA2022/917/1 in accordance with the documents listed at Annexure A (amended DA). 4. As part of the conciliation conference process, 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 for the amended DA and granting development consent to the amended application subject to conditions of consent. 5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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. 6. 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. 7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. Jurisdictional matters 1. 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: 1. Owner's consent for both properties accompanied the original DA and formed part of the Class 1 application. 2. The Respondent notified the DA between 18 and 31 October 2022. No submissions were received. Further no oral submissions were given at the commencement of the s 34 conciliation conference. State Environmental Planning Policy (Transport and Infrastructure) 2021(TI SEPP) 1. Section 2.138 of the TI SEPP requires development consent for the purposes of stormwater management systems and applies as the subject DA includes works to and over a piped drainage channel. Development consent is sought and therefore compliance with this provision is achieved. State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) 1. Prior to the granting of consent consideration is required under s 4.6 of RH SEPP to be given to whether a subject site is contaminated. Further s 4.6(2) requires that where there is a proposed change of use, the consent authority must consider a preliminary site investigation report (and detailed site investigation if required). The parties have considered the provisions of the RH SEPP and agree that the development does not involve a change of use, rather involving works to an existing drainage channel. Consideration has been given to whether the site is contaminated in the form of a detailed site investigation prepared for the site by Sydney Environmental Group (23 July 2023) which confirms that the site is suitable for the proposed use subject to recommended conditions regarding waste classification assessment. These recommendations have been included in the conditions of consent in Annexure A. Accordingly, I am satisfied that the requirements of the RH SEPP have been met. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) 1. The site is located within the Hawkesbury Nepean River system area in accordance with BC SEPP. Chapter 9 of the BC SEPP continues to apply to the development by virtue of a savings provision as the application was lodged in September 2022. Chapter 9 seeks to protect the environment of the river system by ensuring that the impacts of development area considered in the regional context. 2. Parts 9.2 and 9.3 set out matters which must be considered by a consent authority in determining an application for consent to the carrying out of development on land to which Chapter 9 applies. 3. The proposed development is located within an established industrial area. The matters outlined in Parts 9.2 and 9.3 have been considered in the Statement of Environmental Effects submitted with the DA (prepared by Michael Brown Planning Strategies, dated September 2022) and the various advices provided by Calibre Group Pty Ltd. These assessments confirm that the proposal will have minimal impact on the Narellan Creek system. 4. Having regard to the above and the submitted documentation, I am satisfied on the basis of the agreement of the parties, the agreed jurisdiction statement and the relevant documentation that the relevant matters outlined in Parts 9.2 and 9.3 have been considered and that the proposal will not have an adverse impact on the Hawkesbury Nepean River system subject to the proposed conditions of consent. Camden Local Environmental Plan 2010 (CLEP) 1. The development works are for the purposes of drainage and hardstand which are permissible uses in the IN1 – General Industrial zone in which the site is located, pursuant to the CLEP,: being uses ancillary to the main industrial use of the stie. 2. The development is consistent with the objectives of the IN1 – General Industrial zone including notably "to provide for a wide range of industrial and warehouse land uses". 3. Clause 5.21 of CLEP applies as the site is flood affected land. Subsection (2) requires that development consent must not be granted unless the consent authority is satisfied of the matters listed. Further subsection (3) requires specific matters to be taken into consideration. Detailed flood analysis has been undertaken and the flood experts agree, in the joint statement, that the proposal complies with the requirements of cll 5.21(2) and 5.21(3) as the proposal will have negligible impact on the 1% AEP flood levels and velocities at Orielton Road, there is a slight reduction in 1% AEP floor hazards in the channel downstream of the proposed works, and the proposal does not affect the existing floor evacuation strategy. Having regard to the flood analysis, proposed design and Council assessment I am also satisfied in respect of the relevant matters. CONCLUSION 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 the Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the Applicant amending DA/2022/917/1 to rely upon the following amended plans and documents: Plan Ref Date Description Issue Engineers Plans 23007 prepared by Prascon CI-01 12.09.24 General Notes, Drawing Index & Locality Plan F CI-03 19.03.24 Existing Site Layout A CI-10 10.09.24 Proposed Hardstand- General Arrangement E CI-11 10.09.24 Proposed Hardstand - General Arrangement with Aerial Overlay E CI-12 09.07.24 Proposed Bulk Earthwork Plan B CI-20 10.09.24 Proposed Hardstand- Drainage Layout E CI-21 10.09.24 Proposed Hardstand- Typical Section & Elevation E CI-31 12.09.24 Typical Culvert & Abutment Wall Structural Details D CI-32 12.09.24 Typical Trench Structural Details C CI-33 12.09.24 Safety Security Fence & Signage Details B CI-39 10.09.24 Proposed Hardstand - Catchment Plan C CI-40 12.09.24 Proposed Hardstand- Concept WSUD Assessment D CI-41 10.09.24 Proposed Hardstand -Vehicle Turn Path Assessment - 11-15 Orielton Rd E CI-42 10.09.24 Proposed Hardstand-Vehicle Turn Path Assessment - 44 Topham Rd C CI-51 10.09.24 Proposed Hardstand Vehicle Ground Clearance Diagram B Landscape Plan 24/2675, revision A, prepared by Paul Scrivener Landscape dated 11 June 2024 Construction Methodology for Concrete Inlet Pit prepared by Prascon dated 2 July 2024 Flood Modelling Memorandum 22-000109, revision 3, prepared by Egis dated 17 September 2024 Safety in Design Risk Assessment, revision B, prepared by Prascon dated 9 September 2024 Planning Letter prepared by Michael Brown Planning Strategies dated 13 May 2024 Owners Consent from NSW Farmers dated 17 May 2024 MUSIC-link Report Lot 24 (11-15 Orielton Rd) & Lot 72 (44 Topham Rd) Smeaton Grange NSW - Split Catchment – dated 12 September 2024 Orders 1. The orders of the Court are: 1. The Appeal is upheld. 2. The Applicant is granted leave to file the Amended Development Application referred to in paragraph [11] above with the Court. 3. The Applicant is to pay the Respondent's costs "thrown away" as a result of the Amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 4. Development Application No. DA/2022/917/1, for the for the replacement of the existing grassed stormwater drainage channel with a box culvert and hardstand areas for future car parking purposes associated with the use of the premises at 11-15 Orielton Road (Lot 24 DP 1179843) and 44 Topham Road, Smeaton Grange (Lot 72 DP 1179843), is determined by the grant of development consent subject to the conditions in Annexure A. Helena Miller 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: 12 November 2024