AG Development Management Pty Ltd v Blacktown City Council

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pts 7, 8, ss 6.3, 6.3A, 7.6, 7.7, 8.4
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.46, 4.47, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Rural Fires Act 1997 (NSW), s 100B
Threatened Species Conservation Act 1995 (NSW), Sch 7 Pt 7
Environmental Planning and Assessment Regulation 2021 (NSW), s 23
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 2.6, 2.7, 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Industry and Employment) 2021, Sch 5, s 3.1
State Environmental Planning Policy (Precinct – Central River City) 2021, s 3.26, Appendix 8 ss 2.3, 2.6, 5.3, 5.9, 6.3
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Save Sydney’s Koalas (South West) Inc v Lendlease Communities (Figtree Hill) Pty Ltd (No 2) [2021] NSWLEC 102

Texts Cited: Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Category: Principal judgment

Parties: AG Development Management Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
A Jucha (Applicant)
S Berveling (Respondent)
Solicitors:
Addisons (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s): 2025/124555

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by AG Development Management Pty Ltd (the Applicant) against the deemed refusal of development application DA-25-00021 by the Respondent. The development application, as amended, seeks consent for a staged integrated housing development comprising 37 residential lots, one community road lot, one residue allotment, 42 residential dwellings and associated works including demolition, removal of trees, civil works, landscaping and construction of dwellings. The development is proposed at 28 Rouse Road, Rouse Hill (Lot 184 DP 208203).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference was adjourned to provide the parties an opportunity to seek to resolve their dispute, however the conciliation was terminated on 15 October 2025, and the matter was listed for hearing. In November 2025 the Applicant was granted leave by the Court to amend their development application.

3. Prior to the commencement of the hearing the parties advised the Court that they had reached agreement. Following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 4 March 2026. I presided over the conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (“McMillan”) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

5. The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

6. The proposed development is integrated development pursuant to s 4.46 of the EPA Act as it requires approval under s 100B of the Rural Fires Act 1997 (NSW). The Site is mapped as 'Bushfire Prone Land', and the development application seeks consent for subdivision of bush fire prone land for a residential purpose (s 100B(1)(a)). The amended development application, including the accompanying Bushfire Protection Assessment, was referred to the NSW Rural Fire Service who issued a Bushfire Safety Authority on 14 January 2026. The conditions in Annexure A include the NSW Rural Fire Service requirements. Compliance with s 4.47 of the EPA Act is achieved.

7. The development application was notified and placed on public notice by the Respondent from 12 February to 14 March 2025. One submission was received. The concerns of the resident centred on access to Rouse Road for the proposed development. With the assistance of the expert traffic and planning evidence in the proceedings, I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

8. The site is within the Area 20 Growth Centre Precinct pursuant to State Environmental Planning Policy (Precinct – Central River City) 2021 (SEPP Precincts). The provisions applicable to the development are specified both in the body of the instrument and in Appendix 8 of SEPP Precincts.

9. Pursuant to SEPP Precincts the site is identified as ‘flood prone and major creeks land’. Accordingly, s 3.26 applies to the development. Pursuant to s 3.26(2) consent cannot be granted to the development unless the consent authority has given consideration to the matters listed in the clause. The Statement of Environmental Effects (SEE) details an assessment of the amended development against the matters listed at s 3.26(2) of SEPP Precincts and confirms that the portion of the site affected by flooding is limited to that zoned SP2 (Infrastructure). In determining the development application, I have given consideration to the matters listed at s 3.26(2) of SEPP Precincts and find that none warrant the refusal of the application. In reaching these conclusions I am assisted by the expert evidence filed in the proceedings, the SEE, civil engineering drawings and reports.

10. Pursuant to Appendix 8 of SEPP Precincts the site is zoned three different zones, being R3 Medium Density Residential, RE1 Public Recreation and SP2 Infrastructure. In determining the development application, I have given consideration to the objectives of the three zones as required by s 2.3 of Appendix 8 of SEPP Precincts.

11. I accept the agreed submission of the parties that the proposed development is permissible under Appendix 8 of SEPP Precincts as reasoned below:

(a) Dwelling houses, secondary dwellings, roads and signage proposed are permitted with consent in the R3 Medium Density Residential zone. (b) Earthworks and roads proposed are permitted with consent in the SP2 (Infrastructure), R3 Medium Density and RE1 Public Recreation zone. (c) Pursuant to s 2.6 of Appendix 8 of SEPP Precincts, subdivision is permitted with consent in all three zones. (d) The proposed drainage works located within the RE1 Public Recreation Zone are permissible through reliance on the flexibility available at s 5.3 “Development near zone boundaries” of Appendix 8 of SEPP Precincts. The works are contained within 30m of the zone boundary of the RE1 Public Recreation Zone and the R3 Medium Density Zone. As required by s 5.3(5) I am satisfied that the drainage works are not inconsistent with the objectives for development in both zones and that carrying out of the works is desirable due to infrastructure capacity and the efficient and timely development of land.

8. I note that the portion of the site that is zoned R3 Medium Density Residential is in an area that is mapped as being the subject of a Biodiversity Certification Order under Pt 8 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) and is ‘bio-certified land’. The relevant consequences upon the development application process in the EPA Act on the conferral of the Biodiversity Certification are provided in s 8.4(2) and (3) of the BC Act as follows:

8.4 Effect of biodiversity certification

…

(2) Development (including State significant development) under Part 4 of the Planning Act An assessment of the likely impact on biodiversity of development on biodiversity certified land is not required for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979.

(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Environmental Planning and Assessment Act 1979, is not required to take into consideration the likely impact on biodiversity of the development carried out on that land.

9. Accordingly, consistent with the decision of the Court in Save Sydney’s Koalas (South West) Inc v Lendlease Communities (Figtree Hill*) Pty Ltd (No 2)* [2021] NSWLEC 102 at [139], the prohibition on the clearing of native vegetation that exceeds the biodiversity offsets scheme threshold pursuant to s 2.6(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), does not apply to that portion of the site. Further, s 7.6 of the BC Act provides that the requirements of Pt 7 of the BC Act do not apply to land certified under Pt 8 of the BC Act.
10. Further, with the assistance of the Biodiversity Development Assessment Report (BDAR), I am satisfied that the proposed development (outside the portion of the site that is bio-certified land) will not result in the clearing of any existing native vegetation (within the meaning of the relevant biodiversity measures under Pt 7 of Sch 7 to the Threatened Species Conservation Act 1995 (NSW)). With the assistance of the ecological experts in the proceedings, I accept the submission of the parties that the BDAR meets the requirements of s 7.7 of the BC Act. I accept the agreement of the parties that the amended development application meets the requirements of ss 6.3 and 6.3A of the BC Act to avoid, minimise and offset impacts on biodiversity values of the site by detailed analysis of the siting of the infrastructure to avoid and minimise impacts and the implementation of a Vegetation Management Plan and a Biodiversity Conservation Management Plan. Further, the conditions of consent in Annexure A require the Applicant to retire biodiversity credits to offset the residual impacts of the development as specified in the BDAR.
11. Appendix 8 of SEPP Precincts contains a number of development standards. With the assistance of the SEE and the plans and reports accompanying the amended development application, I accept the submission of the parties that the development application complies with those standards.
12. Pursuant to s 5.9(3) of Appendix 8 of SEPP Precincts tree removal is permitted subject to development consent. In the amended development application consent is sought for the removal of 127 trees within the bio-certified portion of the site. Consent for the removal of these trees is provided in Annexure A. In a concordant manner the development application meets the requirements of s 2.7 of SEPP BC by the granting of development consent to tree removal for the proposed development.
13. A portion of the site is within a native vegetation retention area and subject to the provisions of s 6.3 of Appendix 8 of SEPP Precincts. In that portion of the site, three trees are proposed to be removed to facilitate the stormwater management works. This tree removal is extensively offset by landscape, tree planting and biodiversity management works proposed in the amended development application. Accordingly, I am satisfied that:

(a) there is no reasonable alternative available to the disturbance of the native vegetation, (b) as little native vegetation as possible will be disturbed, (c) that native vegetation will be reinstated, (d) the disturbance of the native vegetation will not increase salinity (e) the loss of remnant native vegetation caused by the disturbance will be compensated by revegetation, and (f) that no more than 0.5 hectares of native vegetation will be cleared.

14. The development application seeks consent for two signs under State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE). In granting consent to the development application, I am satisfied that the design of the sign satisfies the assessment criteria in Sch 5 and is consistent with the objectives of set out in s 3.1(1)(a) of SEPP IE.

15. The proposed development includes the construction of residential dwellings to which State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) applies and the development application requires BASIX certification. The amended development application includes updated BASIX certificates, and the development is required by the annexed conditions to be carried out in accordance with those certificates.

16. Chapter 4 (Remediation of Land) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP) applies to the site. Section 4.6 of the SEPP requires a consent authority to consider whether land is contaminated when determining a development application. In support of the application, a Detailed Site Investigation (DSI) has been submitted. The DSI concludes that the potential risk associated with the historical agricultural use of the land and the decommissioning of the septic system is low, and that the site can be made suitable for the proposed development subject to the implementation of the recommendations outlined in the DSI. Compliance with the DSI is required by conditions of development consent provided in Annexure A. On this basis, I am satisfied that the site is suitable for the proposed development.

17. Chapter 6 of the SEPP BC applies to the development as the site is located within the Hawkesbury – Nepean catchment. I am satisfied that the matters listed in s 6.6(1) of SEPP BC have been considered through the stormwater design and the annexed conditions. Further, I am satisfied that the effect of the proposed development on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial. Finally, I am satisfied that the impact on water flow will be minimised by the design of the proposed development. In reaching these conclusions I am assisted by the expert evidence filed in the proceedings, the SEE, civil engineering drawings and reports. Accordingly, the Court can be satisfied that the matters set out in ss 6.6, 6.7, 6.8, 6.9 and 6.10 of the SEPP BC are satisfied.

18. Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (DCP 2010) applies to the site. The SEE which accompanies the amended development application details the compliance of the proposed development with DCP 2010. In determining the development application, I have considered the provisions of the development control plan as required by s 4.15(1) of the EPA Act.

19. 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 in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

20. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

Notes

7. The Court notes that Blacktown City Council as the relevant consent authority, pursuant to s 38 of the EPA Regulation, consented to the following amendments to development application No DA-25-00021 in accordance with the following plans and documents:

| Tab | Documents | | 1. | Schedule of amendments | | 2. | Architectural plans prepared by Signature: Drawing Description Rev. Date SK-01 Proposed Site & Ground Floor Plan R 20 February 2026 SK-02 First Floor Plan H 20 February 2026 SK-03 Roof Plan H 20 February 2026 SK-04 Solar Diagrams – 21 June F 20 February 2026 SK-05 Proposed Layout Levels & Retaining Walls G 2 March 2026 SK-06 Public Domain Plan E 20 February 2026 SK-07a Staging Plan H 3 March 2026 SK-07b Staging Plan F 20 February 2026 SK-08 Waste Collection Plan D 20 February 2026 | | Drawing | Description | Rev. | Date | | SK-01 | Proposed Site & Ground Floor Plan | R | 20 February 2026 | | SK-02 | First Floor Plan | H | 20 February 2026 | | SK-03 | Roof Plan | H | 20 February 2026 | | SK-04 | Solar Diagrams – 21 June | F | 20 February 2026 | | SK-05 | Proposed Layout Levels & Retaining Walls | G | 2 March 2026 | | SK-06 | Public Domain Plan | E | 20 February 2026 | | SK-07a | Staging Plan | H | 3 March 2026 | | SK-07b | Staging Plan | F | 20 February 2026 | | SK-08 | Waste Collection Plan | D | 20 February 2026 | | 3. | Landscape plan prepared by Geoscapes: Drawing Description Issue Date LDA-06 Landscape Canopy Calculation J 10 February 2026 | | Drawing | Description | Issue | Date | | LDA-06 | Landscape Canopy Calculation | J | 10 February 2026 | | 4. | Civil plans prepared by C&M Consulting: Drawing Description Rev Date 02891__120 Site Layout Plan & Legend, Rev 06 06 24 February 2026 02891__130 Raingarden S10 Overlay Plan, Rev 04 04 24 February 2026 02891__201 Ultimate General Arrangement Plan Sheet 1, Rev 08 08 24 February 2026 02891__202 Ultimate General Arrangement Plan Sheet 2, Rev 08 08 24 February 2026 02891__205 General Arrangement Plan – Stage 1 Works, Rev 07 07 24 February 2026 02891__206 General Arrangement Plan – Stage 2 Works, Rev 07 07 24 February 2026 02891__207 General Arrangement Plan Stage 3 & 4, Rev 04 04 24 February 2026 02891__231 Bulk Earthworks Cut/Fill Plan, Rev 06 06 24 February 2026 02891__242 Linemarking & Signposting Plan Stage 2 Works, Rev 06 06 24 February 2026 02891__243 Linemarking & Signposting Plan Ultimate Works, Rev 04 04 24 February 2026 02891__351 Typical Sections – Sheet 1, Rev 07 07 24 February 2026 02891__352 Tree Sections, Rev 05 05 24 February 2026 02891__353 Site Sections, Rev 05 05 24 February 2026 02891__501 Retaining Wall Alignment Plan & Profiles – Sheet 1, Rev 08 08 24 February 2026 02891__601 Stormwater Drainage Catchment Plan - Overall, Rev 06 06 24 February 2026 02891__602 Stormwater Drainage Catchment Plan – Ultimate Water Quality, Rev 07 07 24 February 2026 02891__603 Stormwater Drainage Catchment Plan – Water Quality Stage 1 06 10 February 2026 02891__604 Stormwater Drainage Catchment Plan – Detailed Catchment Plant, Rev 06 06 24 February 2026 02891__605 Stormwater Drainage Temporary Boundary Swale Drain Details, Rev 04 04 24 February 2026 02891__701 Sediment Erosion Control Plan, Rev 06 06 24 February 2026 02891__702 Sediment Erosion Control Plan Stage 1 Works, Rev 06 06 24 February 2026 | | Drawing | Description | Rev | Date | | 02891__120 | Site Layout Plan & Legend, Rev 06 | 06 | 24 February 2026 | | 02891__130 | Raingarden S10 Overlay Plan, Rev 04 | 04 | 24 February 2026 | | 02891__201 | Ultimate General Arrangement Plan Sheet 1, Rev 08 | 08 | 24 February 2026 | | 02891__202 | Ultimate General Arrangement Plan Sheet 2, Rev 08 | 08 | 24 February 2026 | | 02891__205 | General Arrangement Plan – Stage 1 Works, Rev 07 | 07 | 24 February 2026 | | 02891__206 | General Arrangement Plan – Stage 2 Works, Rev 07 | 07 | 24 February 2026 | | 02891__207 | General Arrangement Plan Stage 3 & 4, Rev 04 | 04 | 24 February 2026 | | 02891__231 | Bulk Earthworks Cut/Fill Plan, Rev 06 | 06 | 24 February 2026 | | 02891__242 | Linemarking & Signposting Plan Stage 2 Works, Rev 06 | 06 | 24 February 2026 | | 02891__243 | Linemarking & Signposting Plan Ultimate Works, Rev 04 | 04 | 24 February 2026 | | 02891__351 | Typical Sections – Sheet 1, Rev 07 | 07 | 24 February 2026 | | 02891__352 | Tree Sections, Rev 05 | 05 | 24 February 2026 | | 02891__353 | Site Sections, Rev 05 | 05 | 24 February 2026 | | 02891__501 | Retaining Wall Alignment Plan & Profiles – Sheet 1, Rev 08 | 08 | 24 February 2026 | | 02891__601 | Stormwater Drainage Catchment Plan - Overall, Rev 06 | 06 | 24 February 2026 | | 02891__602 | Stormwater Drainage Catchment Plan – Ultimate Water Quality, Rev 07 | 07 | 24 February 2026 | | 02891__603 | Stormwater Drainage Catchment Plan – Water Quality Stage 1 | 06 | 10 February 2026 | | 02891__604 | Stormwater Drainage Catchment Plan – Detailed Catchment Plant, Rev 06 | 06 | 24 February 2026 | | 02891__605 | Stormwater Drainage Temporary Boundary Swale Drain Details, Rev 04 | 04 | 24 February 2026 | | 02891__701 | Sediment Erosion Control Plan, Rev 06 | 06 | 24 February 2026 | | 02891__702 | Sediment Erosion Control Plan Stage 1 Works, Rev 06 | 06 | 24 February 2026 | | 5. | Letter dated 11 February 2026 prepared by C&M Consulting Engineers to Addisons considering Clause 6.6 Water Quality and Quantity of the State Environmental Planning Policy (Biodiversity and Conservation) 2021. | | 6. | Revised Biodiversity Management Plan dated 13 February 2026 prepared by Australian Wetlands Consulting Pty Ltd | | 7. | Addendum letter dated 11th August 2025 prepared by McCardle Cultural Heritage Pty Ltd |

Orders

8. The Court orders that:

9. The appeal is upheld

10. The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the amendment of the development application.

11. Development Application No DA-25-00021 for integrated housing development comprising 37 residential lots, one community road lot, one residue lot, 42 residential dwellings and associated works including demolition, removal of trees, civil works, landscaping and construction of dwellings at 28 Rouse Road, Rouse Hill (also known as Lot 184 DP 208203) is determined by grant of consent, subject to the conditions set out in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (930 KB, pdf)

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