Abbott v Penrith City Council

Category: Principal judgment

Parties: Stephen Abbott (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
M Mantei (Solicitor) (Applicant)
D Johnson (Solicitor) (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/21383

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal, lodged by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), concerns the refusal by Penrith City Council (Council) of development application number DA24/0429 (DA). The DA seeks consent for what is described as ‘alterations and additions to existing shed involving enclosure on existing awning, contruction of an awning and carport’, at 29 - 33 Sheredan Road, Castlereagh (the Site).

Conciliation and agreement between the parties

2. After liaison between the parties (and certain further documentation comprising amendments to the DA), at the parties’ request, the Court arranged a conciliation conference between them under s 34(AA) of the Land and Environment Court Act 1979 (LEC Act). The conference was held on 23 May 2025. I presided.

3. At the conference, the parties provided evidence of, and explained, a signed agreement confirming the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, and subject to conditions.

4. 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 one that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63],[65]). It is my finding that there are no such constraints. But there are certain queries, relating to jurisdiction, which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional statemement dated 13 May 2025 and an addendum statement dated 23 May 2025.

Jurisdiction

Penrith Local Environmental Plan 2010

5. The parties advise that the site is located in zone C4 Environmental Living. Development for the purposes of "dwelling houses" are nominated as development which is permissible with development consent in the C4 Zone. The proposed development is characterised as ancillary to the existing dwelling house on the Site and is therefore a permissible development.

6. The parties indicate no development standard is contravened with the proposal.

7. The only clause requiring jurisdictional findings, relevant to this proposal, is cl 7.7 which relates to servicing. Subclause 7.7(2) requires a consent authority to be satisfied with respect to certain factors. There are no concerns in relation to servicing aspects (with the amendment removing a previously proposed toilet) and I accept the advice of the parties that the provisions of subcl 7.7(2) have been satisfied.

State Environmental Planning Policy (Resilience and Hazard) 2021

8. Chapter 4 relates to remediation of land, with s 4.6 requiring a consent authority to consider whether the land is contaminated, and if the land is contaminated ensure that it is satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted. The Site has a historical residential use with no known prior potentially contaminating land uses and is located within an established large lot residential locality. Based on historical records, there is no suggestion that the Site is contaminated. The parties agree that requirements of s 4.6 have been met and in consideration of this advice I too am satisfied in regard to s 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

9. The site is identified within the Hawkesbury Nepean Catchment, a regulated catchment under Pt 6.2 of Ch 6 and therefore the DA is subject to relevant provisions Div 2 which raise jurisdictional tests.

10. The parties advise, and reference background documentation, that there has been “proper and genuine” consideration of the matters relating to water quality and quantity, aquatic ecology, flooding and recreation and public access (respectively subss 6.6(1), 6.7(1), and 6.8(1)) and that the related applicable findings of satisfaction can be made with respect to subss 6.6(2), 6.7(2) and 6.8(2). I accept the parties’ advice and make the applicable findings of satisfaction.

Other considerations

11. The parties advise that required notification has been undertaken and no submission had been received.

Conclusion

12. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

13. 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 proposal generally.

Notation

14. The Court notes that Penrith City Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA 24/0429 to rely on the documents listed below:

(a) Architectural and Concept Landscape Plan (Rev D) prepared by House Plan, Design, Drafting dated 7 March 2025, (b) Arboricultural Impact Assessment and Tree Protection Plan prepared by Greenspace Arbor, and Filed: 14/05/2025 (c) Bushfire Hazard Assessment Report prepared by Control Line Consulting dated 25 February 2025.

Orders

15. The Court orders:

16. The appeal is upheld.

17. Development consent is granted to development application DA24/0429 for the alterations and additions to existing shed involving additional enclosed floor area, enclosure of existing awning, construction of an awning and carport to be used for storage and maintenance of classic cars and associated equipment at Lot 206 DP 709304, commonly known as 29-33 Sheredan Road, Castlereagh NSW 2749, subject to the conditions at Annexure “A”.

P Walsh

Commissioner of the Court

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Annexure A (400 KB, pdf)