Land and Environment Court New South Wales Medium Neutral Citation: St Marys Land Limited v Penrith City Council [2019] NSWLEC 1599 Hearing dates: Conciliation conference 15 November 2019 Date of orders: 05 December 2019 Decision date: 05 December 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders: (1) The Applicant is granted leave to amend its application and the plans filed with the Court on 7 November 2018, by plans and information provided to the Respondent on 11 July 2019 in accordance with the schedule of plans enclosed and annexed to the conditions at Annexure 'A'. (2) The appeal is upheld. (3) Development Application DA 18/0221 lodged on 8 March 2018 as amended by order 2(a) above (Development Application), seeking development consent for the construction of approximately 670 metres of the East West Connector Road (sometimes referred to as the Ropes Connector Road) and approximately 850 metres of the Dunheved Links Road south, including construction of the South Creek Bridge and filling works within the Regional Open Space located within the Penrith local government area, comprising Stage 2 of the East West Connector Road development over Lot 1 in DP 1132380 and Lot 6 in DP 1248480, is approved subject to the conditions set out in Annexure 'A' attached hereto. Catchwords: DEVELOPMENT APPEAL – integrated development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Sydney Regional Environment Plan No 30 State Regional Environmental Plan No 20 – Hawkesbury-Nepean River Category: Principal judgment Parties: St Marys Land Limited (Applicant) Penrith City Council (Respondent) Representation: Counsel: J Farrell (Applicant) S Drury (Solicitor) (Respondent) Solicitors: Minter Ellison (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2018/342140 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns an application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Penrith City Council (the Respondent) of Development Application DA 18/0221 for the construction of the Ropes Connector Road (East West connector) and Dunheved Links Road, including the South Creek Bridge, and filling works within the Regional Open Space in preparation for future recreational facilities on Lot 3000 in DP1215087 located at Wianamatta Parkway, Llandilo 2747. 2. The proposed works include: * The construction of two roads, referred to as the East West Connector Road, and the Dunheved Links Road. * A bridge over South Creek. * Earthworks to create the new roads and additional earthworks in the future Regional Open Space. 1. The site is within a greater development site known as the former Australian Defence Industries (ADI) site, or the St Marys Development Site which is divided in to six (6) precincts currently being developed in stages. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 November 2019. I presided over the conciliation conference. 3. Prior to 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 November 2019. 4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 5. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 including the provisions of the Sydney Regional Environment Plan No 30 – St Marys (SREP 30), and I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the following reasons: 1. The development, the subject of the development application is a road, being development that is permitted with consent under cl 41 of SREP 30, wherein the objective is to identify certain land that will be required for the purpose of a road. 2. I am satisfied that the amended Development Application is not inconsistent with the achievement of performance objectives at cll 21 – 35 of the SREP 30, the zone objective stated above and other requirements set out in cl 20 of the SREP 30. 3. In accordance with cl 44(2) of the SREP, I am satisfied that the development application has been referred to the Director-General of National Parks and Wildlife, and that advice has been received and considered with respect to the application as required by cl 44(3). 4. I am satisfied that the proposed remediation work is category 1 remediation work as defined by cl 9 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), has been advertised and exhibited, and will require the removal of soil or other deposits from, or otherwise remediating contaminated land as defined by cl 11(4) of the State Regional Environmental Plan No 20 – Hawkesbury-Nepean River. On the basis of the Contamination Management Plan prepared by JBS&G dated 24 January 2018, and advice therein that the site has been the subject of extensive investigation and remediation since the 1990s, I am satisfied that the land will be remediated in accordance with cl 7 of SEPP 55. 5. As the filling of land associated with the works is within the Road and Road Widening zone, the proposed development is necessary as part of development to be carried out on the land as set out in cl 50(2)(c) of the SREP 30 and consent may be granted. 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' 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. 3. The Court orders: 1. The Applicant is granted leave to amend its application and the plans filed with the Court on 7 November 2018, by plans and information provided to the Respondent on 11 July 2019 in accordance with the schedule of plans enclosed and annexed to the conditions at Annexure 'A'. 2. The appeal is upheld. 3. Development Application DA 18/0221 lodged on 8 March 2018 as amended by order 2(a) above (Development Application), seeking development consent for the construction of approximately 670 metres of the East West Connector Road (sometimes referred to as the Ropes Connector Road) and approximately 850 metres of the Dunheved Links Road south, including construction of the South Creek Bridge and filling works within the Regional Open Space located within the Penrith local government area, comprising Stage 2 of the East West Connector Road development over Lot 1 in DP 1132380 and Lot 6 in DP 1248480, is approved subject to the conditions set out in Annexure 'A' attached hereto. ………………………… T Horton Commissioner of the Court Annexure A (451 KB) ********** 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: 05 December 2019