Auric Development Pty Ltd v Blacktown City Council

Category: Principal judgment

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

Representation: Counsel:
J Dowidar (Solicitor) (Applicant)
M Fozzard (Respondent)
Solicitors:
Mills Oakley (Applicant)
Bilias & Associates (Respondent)

File Number(s): 2025/207506

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application DA-21-01737 (Development Application). The Development Application, as lodged, sought consent for demolition of existing structures, subdivision of existing allotment into 10 Torrens Title residential lots, including tree removal, construction of new public roads, retaining walls and associated works at Lot 5 in Deposited Plan 24106 also known as at 41 Piccadilly Street, Riverstone (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 20 September 2021.

4. The Development Application was publicly notified from 18 October to 1 November 2021. Eleven submissions were received in response to the notification from seven residents objecting to the proposal.

5. The Development Application was refused by the respondent on 23 January 2025.

6. On 30 May 2025, the proceedings were commenced in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. On 11 June 2025, the Court granted the applicant leave to rely on amended plans and documents (June 2025 Amendments).

8. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 13 November 2025, the matter was listed for hearing on 8 and 9 April 2026.

9. Prior to the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 13 March 2026, following which the hearing was vacated. I presided over the conciliation conference.

10. The decision agreed upon is for the grant of consent to the Development Application as amended by the June 2025 Amendments and further agreed amendments (March 2026 Amendments), subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

11. The March 2026 Amendments include:

12. amended civil engineering plans;

13. amended subdivision plan;

14. amended traffic and transport report; and

15. landscape statement supporting the street design and proposed tree locations to allow acceptable waste collection to occur on Connor Street.

16. The June 2025 Amendments, together with the March 2026 Amendments, now comprise the Amended Development Application.

17. 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.

Jurisdictional considerations

14. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow.

Owners consent

15. The registered proprietor of the Subject Land provided consent to the lodging of the Development Application by the applicant (see Class 1 Application, tab 1). The Subject Land is now relevantly owned by the applicant in these proceedings.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated; and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

17. The Amended Development Application is accompanied by a Preliminary Site Investigation prepared by Environmental Resources Management Australia Pty Ltd dated 2 August 2021 (PSI). The PSI concludes that the Subject Land is suitable for the intended land use, subject to the recommendations relating to appropriate salinity management on the site during construction and asbestos clearance. The Agreed Conditions address this requirement at conditions 4.2, 5.10 and 9.5).

18. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

19. Having regard to the PSI and Agreed Conditions of consent, I am satisfied that the Subject Land is, or will be, suitable for its proposed use and that the requirements of s 4.6 of the RH SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Former Ch 9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development. This is because:

21. The relevant provisions in the Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 – 1997) which applied as at the date the Development Application was lodged, were transferred into Ch 9 of the BC SEPP (see s 1.4 and Sch 14, cl 8 of the BC SEPP) on 2 December 2021.

22. Although Ch 9 of the Biodiversity SEPP was then repealed on 21 November 2022 through the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments Amendment SEPP), s 6.65 of the Biodiversity SEPP provides that the former Chapters continue to apply to a development application which was lodged, but not fully determined, before the commencement of the Water Catchments Amendment SEPP. The Development Application was lodged on 29 September 2021 being prior to the commencement of the Water Catchments Amendment SEPP. As the Development Application has not yet been determined, Ch 9 of the Biodiversity SEPP continues to apply to the Amended Development Application.

23. The proposed development the subject of the Amended Development Application is located in the Blacktown local government area (cl 9.1 of the Biodiversity SEPP).

24. Section 9.3 of the BC SEPP requires the consent authority to take into consideration the matters set out in ss 9.4 and 9.5 of the BC SEPP in determining a development application on land to which the Chapter applies.

25. The parties agree that the matters set out in ss 9.4 and 9.5 of the BC SEPP have been considered in the following documents accompanying the Amended Development Application:

26. Statement of Environmental Effects prepared by Mepstead & Associates dated August 2021 (SEE) (see p 21); and

27. Amended Concept Engineering Plans prepared by Mepstead & Associated dated 24 September 2025 (Engineering Plans).

28. In determining the Amended Development Application, and having regard to the documents listed above, I am satisfied that the matters set out in ss 9.4 and 9.5 of the Biodiversity SEPP have been considered for the purposes of s 9.3.

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

24. The Subject Land is zoned R2 Low Density Residential under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) which was in force as at the date the Development Application was lodged. Although the Growth Centres SEPP was repealed upon commencement of the State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City Precincts SEPP), the Growth Centres SEPP continues to apply to applications lodged but not determined before the commencement of the Central River City Precincts SEPP. Therefore, the Alex Avenue and Riverstone Precinct Plan 2010 (Precinct Plan) contained in Appendix 4 of the Growth Centres SEPP applies to the Amended Development Application. Accordingly, the development the subject of the Amended Development Application is permitted with consent under the Precinct Plan.

25. Pursuant to s 2.3 of the Precinct Plan, I have had regard to the R2 zone objectives which are extracted below:

Zone R2 Low Density Residential

1. To provide for the housing needs of the community within a low density residential environment.

2. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

4. To support the well being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

5. The parties agree that the Amended Development Application can be approved having regard to the objectives of the R2 zone.

6. Subdivision works are permissible with consent pursuant to s 2.6 of the Precinct Plan.

7. Section 4.1AB of the Precinct Plan sets out minimum lot sizes for residential development in the R2 Low Density Residential zone. Pursuant to s 4.1AB(3), the minimum lot size for a dwelling house is 300m2 if the dwelling density (per hectare) is shown on the “Residential Density Map” for the site is 15, 25 or 35 dwellings. The Subject Land has a dwelling density (per hectare) of 15 dwellings. Therefore, the Amended Development Application complies with this provision.

8. Pursuant to section 4.1B of the Precinct Plan, the minimum dwelling density (per hectare) for the Subject Land is 15 dwellings. The Amended Development Application proposes a dwelling density of 22.7 dwellings per hectare and therefore complies with this section.

9. Pursuant to s 6.1 of the Precinct Plan, a consent authority must not grant development consent to development unless it 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 required.

10. The parties agree and I accept that the development the subject of the Amended Development Application will be connected to all essential services as detailed in the Survey Plan prepared by Mepstead & Associates and subject to the Agreed Conditions (see Conditions 7.5.5, 12.4.1(a) and 12.4.1(b)).

Blacktown City Growth Centres Development Control Plan 2010

32. Relevant provisions of the Blacktown City Growth Centres Development Control Plan 2010 have been considered in the SEE (see pp 21-29).

Remaining matters in section 4.15(1) of the EPA Act

33. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act. Matters relevant to subsections (b), (c) and (e) are considered generally in the SEE (see pp 29-32).

34. In relation to s 4.15(d), the Development Application, as lodged, was publicly notified from 18 October to 1 November 2021. Eleven submissions were received in response to the notification from seven residents objecting to the proposal. The matters raised in the submissions included concerns regarding:

35. traffic and parking;

36. tree retention and removal;

37. waste collection;

38. number of storeys on Lots 101 and 110;

39. noise impacts from future dwellings;

40. overland flow and drainage concerns in Piccadilly Street;

41. asbestos management; and

42. lack of information about road levels.

43. I am satisfied that the written submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.

Conclusion

36. 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.

37. 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.

Orders

38. The Court notes that the respondent, as the relevant consent authority, has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), to the applicant amending DA-21-01737 in accordance with the documents listed below:

| Amended Civil Engineering Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Cover Sheet, Locality Plan & Drawing Index | 5948-DA100-01 | K | 28.01.2026 | Mepstead & Associates | | Construction Notes & Legend | 5948-DA101-01 | K | 28.01.2026 | Mepstead & Associates | | Civil Works Plan | 5948-DA102-01 | K | 28.01.2026 | Mepstead & Associates | | Piccadilly Street Long & Cross Sections | 5948-DA103-01 | K | 28.01.2026 | Mepstead & Associates | | Road 2 – Connor Street Long & Cross Sections | 5948-DA103-02 | K | 28.01.2026 | Mepstead & Associates | | Roads 1, 2 & 3 Typical Sections & Proposed Future Road 3 Longitudinal Section | 5948-DA103-03 | K | 28.01.2026 | Mepstead & Associates | | Cut – Fill Plan | 5948-DA103-04 | K | 28.01.2026 | Mepstead & Associates | | Stormwater Catchment Plan | 5948-DA104-01 | K | 28.01.2026 | Mepstead & Associates | | Stormwater Drainage Lines A, B & E Longitudinal Sections | 5948-DA104-02 | K | 28.01.2026 | Mepstead & Associates | | Stormwater Drainage Lines C & D Longitudinal Sections | 5948-DA104-03 | K | 28.01.2026 | Mepstead & Associates | | Stormwater Drainage Lines F & A5 Longitudinal Sections | 5948-DA104-04 | K | 28.01.2026 | Mepstead & Associates | | 20 Year Stormwater Hydrology & Hydraulic Calculations & Pit Schedule | 5948-DA104-05 | K | 28.01.2026 | Mepstead & Associates | | 100 Year Stormwater Hydrology & Hydraulic Calculations | 5948-DA104-06 | K | 28.01.2026 | Mepstead & Associates | | On-site Detention Basin Details | 5948-DA104-07 | K | 28.01.2026 | Mepstead & Associates | | On-site Detention Basin Access Ramp & Sections B & D | 5948-DA104-08 | K | 28.01.2026 | Mepstead & Associates | | Street Tree Planting Plan | 5948-DA105-01 | K | 28.01.2026 | Mepstead & Associates | | Erosion & Sediment Control Plan | 5948-DA106-01 | K | 28.01.2026 | Mepstead & Associates | | Erosion & Sediment Control Details | 5948-DA106-02 | K | 28.01.2026 | Mepstead & Associates | | Heavy Rigid Vehicle Swept Paths | 5948-DA107-01 | K | 28.01.2026 | Mepstead & Associates | | Connor Street Bin Location Plan | 5948-DA107-02 | K | 28.01.2026 | Mepstead & Associates | | Stage 2 & 3 Decommissioning Works | 5948-DA108-01 | K | 28.01.2026 | Mepstead & Associates | | Stage 1 & 2 Staging Plans | 5948-DA108-02 | K | 28.01.2026 | Mepstead & Associates | | Stage 3 Staging Plan | 5948-DA108-03 | K | 28.01.2026 | Mepstead & Associates | | Amended Subdivision Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Plan of Proposed Subdivision of Lot 5 in DP24106 being No. 41 Piccadilly Street, Riverstone | 5948-SUB1_C | C | 27.01.2026 | Mepstead & Associates | | Plan of Proposed Subdivision of Lot 109 in Proposed Subdivision of Lot 5 in DP24106 being No. 41 Piccadilly Street, Riverstone | 5948-SUB2_A | A | 27.01.2026 | Mepstead & Associates | | Amended Reports and Certificates | | Report name | Ref | Revision | Date | Prepared by | | Transport Review | - | v3 | 13.08.2025 | Arc Traffic and Transport | | Landscape Statement | - | - | 24.10.2025 | Site Image Landscape Architects |

39. The Court orders that:

40. The appeal is upheld.

41. Development consent is granted to Development Application DA-21-01737 for the demolition of all existing structures and the subdivision into 10 Torrens Title residential lots, including tree removal, construction of new public roads, retaining walls and associated works at 41 Piccadilly Street, Riverstone, subject to the conditions at Annexure A.

N Targett

Commissioner of the Court

Annexure A (419 KB, pdf)

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