Eid v Penrith City Council [2025] NSWLEC 1648

Cases Cited: SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Texts Cited: Community Engagement Plan and Community Participation Plan 2024-2028 by Penrith City Council

Category: Principal judgment

Parties: Adel Eid (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
Dr J Smith (Applicant)
D Johnson (Solicitor) (Respondent)
Solicitors:
MillerPrince (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/96921

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the Applicant appeals against the deemed refusal of Development Application DA24/1015 (DA) lodged with Penrith City Council (Council) on 23 December 2024 seeking consent for development described on the DA Form as “the construction of a single storey primary dwelling, detached secondary dwelling and a shed on a vacant allotment on Lot 5 in Deposited Plan 129475 known as 105-107 The Northern Road Londonderry NSW 2753 (Site). More particularly the Applicant seeks consent for the following:

2. Single storey dwelling containing a total floor area of approximately 303m2.

3. Detached secondary dwelling with a total floor area of approximately 111m2.

4. Detached shed with a total floor area of approximately 300m2.

5. Vegetation removal comprising:

(a) Removal of at least sixty (60) trees; (b) Removal of at least 0.026ha of Cooks River/Castlereagh Ironbark Forest and a further thinning of approximately 0.07ha for the establishment of an Asset Protection Zone.

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

4. Below is Figure 1: Aerial photo from Near map with Site outlined in yellow dated 26 March 2025 (from Council’s Statement of Facts and Contentions, p 2, filed on 17 April 2025).

5. The Site is generally rectangular in shape with a frontage of 40.25m to The Northern Road, and 241.4m in depth. The Site has a slight fall from the front (southeastern boundary) to the rear (northwestern boundary), and is approximately 9712m2 in area.

6. The Site is heavily vegetated.

7. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held after the termination of the mediation on 18 August 2025. I presided over the conciliation conference.

8. At 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 development consent to the DA subject to conditions of consent in Annexure A.

9. 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(1) of the EPA Act to uphold the appeal and grant consent to the DA. 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, and explained how they have been satisfied as set out below.

10. The DA was lodged with Council by the Applicant on 8 January 2025 pursuant to s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPAR). The Site is owned by the Applicant and Caroline Eid who have provided landowner’s consent (Class 1 Appeal, tab 2).

11. Pursuant to s 4.5(d) of the EPA Act the Council is the consent authority for the DA.

12. The appeal proceedings were commenced on 12 March 2025 in accordance with the time provisions in s 8.10(1)(a) of the EPA Act.

13. Prior to the conciliation conference, the parties attended a mediation before the Court which took place pursuant to s 26 of the Civil Procedure Act 2005 (NSW) from 11 June 2025 to 18 August 2025. I presided over the mediation. The s 26 mediation was terminated on 18 August 2025, and the s 34(1) Conciliation Conference pursuant to the LEC Act began. During the mediation the Applicant prepared amended plans and further documents in response to Council’s Statement of Facts and Contentions pursuant to s 37(1) of the EPAR,.

Environmental Planning and Assessment Act 1979 (NSW)

14. The parties have satisfied the jurisdictional requirements set out in s 4.15(1)(a) of the EPA Act as set out below.

Biodiversity Conservation Act 2016 (NSW) (BC Act) and State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

15. The vegetation at the Site is mapped as Cooks River/Castlereagh Ironbark Forest as shown on the NSW State Vegetation Type Map prepared by the NSW Department of Climate Change, Energy, the Environment and Water.

16. The Amended DA proposed clearing of native vegetation. Under s 7.7 of the BC Act, the Biodiversity Development Assessment Report prepared by Keystone Ecological dated 12 August 2025 (BDAR) was filed on 18 August 2025.

17. Under s 7.13 of the BC Act, a consent authority is to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the BDAR. Page 21 of the BDAR confirms that the Cooks River/Castlereagh Ironbark Forest which is associated with the Shale Gravel Transition Forest is listed as Ecologically Endangered Community (EEC) under the BC Act. The parties confirm that in accordance with the assessment on p 42 of the BDAR that the EEC on the Site is not an entity listed as being at risk of a serious and irreversible impact. The parties are satisfied that the BDAR outlines the likely impact of the proposed development in the Amended DA, and that the proposed design includes measures to avoid and minimise impacts on the EEC. The BDAR also proposed retirement of biodiversity offset credits, and the requirements of the BDAR are reflected in conditions 15 and 23 of Annexure A.

18. The Site is located within the Hawkesbury-Nepean Conservation Area sub-catchments as per the BC Act. Therefore Chapter 6 of the BC SEPP, which contains provisions relating to development within the regulated catchments, applies to the Site as the Site is located in the Sydney Harbour Catchment.

19. Part 6.2 of Ch 6 of the BC SEPP provides controls for development. The matters for consideration under Part 6.2 have been addressed in the Engineering Plans and Soil and Site Assessment for Onsite Wastewater Management Report by Harris Environmental Consulting filed 18 August 2025, and the conditions of consent in Annexure A.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

20. Chapter 4 (Remediation of Land) and s 4.6 applies requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The Applicant has provided a Detailed Site Assessment Investigation plus RAP by Broadcrest Consulting Pty Ltd dated June 2024 (DSAI Report). The DSAI Report concludes inter alia on p 50:

“1. The site is generally suitable for rural residential land uses, subject to the remediation of the following identified contamination:

a. Shallow Non-Friable Asbestos impacted soil materials located within BH_01 and within the vicinity of BH_06.

2. A Remediation Action Plan (RAP) has been prepared for the site to address Point 1 (Section 4 onwards). Removal of contaminated media from site was considered the most appropriate remedial strategy given the shallow depth of the contamination find (primarily nearly surface), and minor volume of impacted soil (≈10m3).

3. Off-site disposal of contaminated media is considered a suitable option for managing human health and environmental impacts from contaminated materials.”

21. Further, the works set out in the Remediation Action Plan (RAP) have been undertaken and an Asbestos Clearance Certificate dated 28 August 2024 No 00012349 01 ASSC provided. The parties agree that the Site is suitable for the proposed residential use.

22. The Site has an historical residential use and is located within a residential locality. The Amended DA seeks to continue the existing residential use. Based on historical use, the DSAI Report and the Asbestos Clearance Certificate dated 28 August 2024, the parties are satisfied that the Site is suitable for its continued residential use.

State Environmental Planning Policy (Sustainable Buildings) 2022 (BASIX SEPP)

23. The BASIX SEPP applies to the Site and requires a BASIX Certificate to accompany an application for development consent for any BASIX affected building development.

24. The DA was accompanied by the BASIX Certificate No 1779086M by Manali Rana dated 21 December 2024. However, as the Amended DA seeks consent for an attached studio as opposed to a detached secondary dwelling, the BASIX Certificate now needs to be updated. Condition 2a of Annexure A requires an updated BASIX Certificate in accordance with the decision in SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [14]-[17] and [82].

Penrith Local Environmental Plan 2010 (PLEP 2010)

25. The PLEP 2010 is the relevant local environmental instrument that applies to the Site.

26. Compliance with the PLEP 2010 is addressed generally in the Statement of Environmental Effects prepared by Taylored Designs & Drafting 23 December 2024 (Class 1 Application tab 4) (SEE), but specific provisions are addressed below.

27. The Site is zoned RU4 Primary Production Small Lots (RU4 Zone) pursuant to cl 2.3 of PLEP 2010 and the Land Use Table. The objectives of the RU4 Zone are:

1 Objectives of zone

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To ensure land uses are of a scale and nature that is compatible with the environmental capabilities of the land.

• To preserve and improve natural resources through appropriate land management practices.

• To maintain the rural landscape character of the land.

• To ensure that development does not unreasonably increase the demand for public services or facilities.

28. The Amended DA generally complies with the RU4 Zone objectives three to seven listed above.

29. Clause 5.21 of PLEP 2010 (Flood Planning) applies to the Site as part of the Site is identified as flood prone land. The SEE confirms that the proposed buildings will be built above the flood level on the Site. The parties are, and the Court can be, satisfied that the matters in clause 5.21 of PLEP 2010 have been considered by Council because no part of the proposed development is below the flood planning level.

30. Clause 7.5 of PLEP 2010 (Protection of Scenic Character and Landscape Values) applies to the Site as it is identified on the Scenic and Landscape Values Map. The changes to the DA as set out in the Amended DA, and the SEE, have addressed this clause and in particular the location and design of the proposed development (studio, waste water treatment and back-up waste water treatment) to minimise the visual impact of the development from major roads and other public places in satisfaction of this clause.

31. Clause 7.7 of PLEP 2010 (Services) applies to the Site. The Engineering Plans prepared by New Horizon Group Australia Pty Ltd (Tab 3 of the s 34(3) of the LEC Act Agreement document bundle) being Stormwater General Notes 1-3, Stormwater Plan and Level Spreader Details (Engineering Plans) demonstrate that the Site will have adequate facilities for the removal and disposal of sewage. The parties are, and the Court can be, satisfied that the matter under cl 7.7 of PLEP 2010 have been met having regard to the Engineering Plans and the Waste Management Plan by Taylored Designs & Drafting (undated), and the conditions in Annexure A.

32. The parties have satisfied the jurisdictional requirements set out in ss 4.15(1)(d) and (e) of the EPA Act as set out below.

33. The DA was notified in accordance with the Council’s Community Engagement Plan and Community Participation Plan 2024-2028 adopted by Council in December 2024. No submissions were received. As the Amended DA reduced the proposed development on the Site, and there were no submissions to the original notification, Council was not required to re-notify the Amended DA. The parties are satisfied that the DA has been notified in accordance with Council’s Community Engagement and Community Participation Plan 2024-2028 as required by s 4.15(d) of the EPA Act.

34. The parties are satisfied that the Amended DA together with the conditions in Annexure A are in the public interest in accordance with s 4.15(e) of the EPA Act.

35. The parties’ experts agree that all contentions raised in Council’s SOFAC have been resolved by the preparation of the Amended DA and the agreed conditions of consent in Annexure A.

36. The parties agree that the conditions of consent in Annexure A can be lawfully imposed having regard to the provisions of ss 4.16(1) and 4.17(1) of the EPA Act and the relevant legal principles.

37. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

38. 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. I shall uphold the appeal and grant consent to the Amended DA pursuant to s 4.16(1) of the EPA Act.

39. I am not required to consider the merit issues in this matter, and I have not done so.

Notation

40. The Court notes:

41. Penrith City Council as the relevant consent authority, has consented under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No DA24/1015 in accordance with the following amended plans and documents:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Sheet 1 of 6, Revision I | Existing Site Plan and Proposed Site Plan | Taylored Designs & Drafting | 11 August 2025 | | Sheet 2 of 6, Revision I | Proposed Site Analysis Plan and Erosion & Sediment Control Plan | Taylored Designs & Drafting | 11 August 2025 | | Sheet 3 of 6, Revision I | Floor Plan (Dwelling) | Taylored Designs & Drafting | 11 August 2025 | | Sheet 4 of 6, Revision I | South-Eastern Elevation, North-Western Elevation, South-Western Elevation and North-Eastern Elevation | Taylored Designs & Drafting | 11 August 2025 | | Sheet 5 of 6, Revision I | Section 01 | Taylored Designs & Drafting | 11 August 2025 | | Sheet 6 of 6, Revision I | South-Eastern Elevation, Floor Plan (Shed), North-Western Elevation, South-Western Elevation and North-Eastern Elevation | Taylored Designs & Drafting | 11 August 2025 | | Landscape Plans | | 2 | Sheet 1 of 1, Revision I | Concept Landscape Plan | Taylored Designs & Drafting | 11 August 2025 | | Engineering Plans | | 3 | Drawing No. NH-000, Revision 1 | Stormwater General Notes 1 | New Horizon Group Australia Pty Ltd | 10 May 2023 | | Drawing No. NH-010, Revision 1 | Stormwater General Notes 2 | New Horizon Group Australia Pty Ltd | 10 May 2023 | | Drawing No. NH-020, Revision 1 | Stormwater General Notes 3 | New Horizon Group Australia Pty Ltd | 10 May 2023 | | Drawing No. NH-030, Revision 4 | Stormwater Plan | New Horizon Group Australia Pty Ltd | 25 June 2025 | | Drawing No. NH-040, Revision 1 | Level Spreader Details | New Horizon Group Australia Pty Ltd | 10 May 2023 | | Reports | | 4 | Arboricultural Impact Assessment & Tree Protection Plan | Tree Survey Pty Limited | 15 August 2025 | | 5 | Biodiversity Development Assessment Report Small Areas Assessment | Keystone Ecological Pty Ltd | 12 August 2025 | | 6 | Bushfire Hazard Assessment | Harris Environmental Consulting | 22 July 2025 | | 7 | Soil and Site Assessment for Onsite Wastewater management | Harris Environmental Consulting | 13 August 2025 | | 8 | Vegetation Management Plan | Keystone Ecological Pty Ltd | 15 August 2025 | | 9 | Waste Management Plan | Taylored Designs & Drafting | Undated | | 10 | BASIX Certificate No. 1779086M | Manali Rana | 21 December 2024 |

Orders

41. The Court orders:

42. The appeal is upheld.

43. Pursuant to s 4.16(1) of the Environmental Planning and Assessment Act 1979 (NSW) development consent is granted to Development Application No DA24/1015 (as amended) for the construction of a single storey primary dwelling with an attached studio and a shed on land legally described as Lot 5 in Deposited Plan 129475 and known as 105-107 The Northern Road, Londonderry NSW 2753 subject to Annexure A.

M Peatman

Acting Commissioner of the Court

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Annexure A (281 KB, pdf)