Galayini v Penrith City Council

Category: Principal judgment

Parties: Richard Galayini (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
D Loether (Applicant)
A Kleiss (Respondent)
Solicitors:
Bartier Perry (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/96766

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by Penrith City Council of DA24/0900 (DA). The DA as amended seeks development consent for the demolition existing shed/garage and construction of a detached secondary dwelling at 33 Glencoe Avenue Werrington County NSW 2747 also known as Lot 47 DP243891 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, at which I presided on 28 August 2025.

3. No objectors made submissions on the original application.

4. During the conference, the parties agreed to the Applicants’ amendments to the architectural Plans, survey plans, stormwater plans and associated documentation to address Councils contentions. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Respondent, Penrith City Council, as the relevant consent authority, has approved the Applicant amending Development Application DA24/0900 to rely on the amended plans and documents (Amended Materials) listed below:

| TAB | DOCUMENT | | 1. | Architectural Plans, prepared by Ntarch Architects, Revision F, dated 1 July 2025. | | Drawing No. | Drawing Title | Issue | Date | | DA-102 | Site Plan | F | 01/07/2025 | | DA-102 | Ground Floor Plan Rear | F | 01/07/2025 | | DA-103 | Ground Floor Plan Front | F | 01/07/2025 | | DA-104 | Landscape Calculation Plan | F | 01/07/2025 | | DA-105 | Erosion & Sediment Control Plan | F | 01/07/2025 | | DA-106 | BASIX Commitments | F | 01/07/2025 | | DA-201 | North & South Elevations | F | 01/07/2025 | | DA-202 | West & East Elevations | F | 01/07/2025 | | DA-301 | Sections | F | 01/07/2025 | | DA-901 | Finishes Schedule | F | 01/07/2025 | | DA-902 | 3-D Views | F | 01/07/2025 | | 2. | Site Survey, prepared by TSS Total Surveying Solutions, Revision 2, dated 11 June 2025. | | 3. | Stormwater Engineering Plans, prepared by NY Civil Engineering, Revision D, dated 26 June 2025. | | Drawing No. | Drawing Title | Issue | Date | | D1 | Details, Notes & Legend | D | 26/06/2025 | | D2 | Stormwater Management Plan | D | 26/06/2025 | | D3 | Stormwater Details | D | 26/06/2025 | | D4 | Sediment Control Plan | D | 26/06/2025 | | D5 | Sediment Control Details | D | 26/06/2025 | | 4. | Flood Emergency Response Plan, prepared by Martens, document reference P2410133JR03V01, issue 1, dated 7 July 2025. |

5. The Court notes that this list of amended plans and documents is included in the final consent conditions in Annexure A.

6. On the 26 August 2025, the parties submitted an agreement as to the terms of a decision that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended Development Application, subject to conditions in Annexure A.

7. 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.

8. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The signed agreement is supported by a Jurisdictional Statement from the parties and was explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [35].

Jurisdictional Prerequisites

Owners Consent

9. Pursuant to s 23(1) of the Environmental Planning and Assessment Regulation 2021, the DA was lodged by the Applicant, with consent of the owner of the Site, Galayini Family Trust. Owner’s consent is included in the Class1 application filed with the Court.

Public Notification

10. The DA was publicly notified to surrounding residents for a period of 14 days from 30 November 2025 to 13 December 2025. No submissions in response to the public notification were received.

11. State Environmental Planning Policy (Resilience and Hazards) 2021Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that the consent authority must not grant consent to any development on land unless it has considered whether the site is contaminated or potentially contaminated land, and if it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. As identified by the Applicant the Site has had a long history of residential use, with no known potentially contaminating activities being conducted on the site and there otherwise being no indication of potentially contaminated materials on the site.

12. The parties contend, and I accept in the Jurisdictional Statement, that if any contaminated material is encountered during the construction stage, then actions consistent with the legislative requirements will be undertaken. Based on the above, I am satisfied that that requirements of the Resilience and Hazards SEPP have been met.

13. State Environmental Planning Policy (Biodiversity and Conservation) 2021 The Site is located within the Hawkesbury – Nepean Catchment in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). Accordingly, the provisions contained in Chapter 6 of the BC SEPP relating to development within regulated catchments applies to the Site and to the DA.

14. Pursuant to Part 6.2 of Chapter 6, the consent authority must have regard to the matters set out in s 6.6 of the BC SEPP relating to water quality and quantity. The DA, as amended, is supported by amended stormwater engineering plans prepared by NY Civil Engineering, Revision D, dated 26 June 2025 which confirm that the proposed development will not increase the amount of stormwater run-off from the Site through the provision of a 1,500L rainwater tank as part of the DA.

15. Pursuant to s 6.8 of the BC SEPP relating to flooding, the DA is also supported by a flood assessment prepared by Martens and Associates Pty Ltd, (Issue 1, dated 02 April 2024) which confirms that the proposed development would not have any adverse flooding impacts, does not materially alter local flood characteristic, and has a net benefit impact on, and is compatible with, the existing floodplain environment.

16. Based on the above, I am satisfied that the DA, as amended, will not increase the amount of stormwater run-off from the site, will not impact flood behaviour in period flooding events and will not have any adverse impact on water flows and quality to natural waterways, and therefore the requirements of the BC SEPP have been addressed.

State Environmental Planning Policy (Sustainable Buildings) 2022

17. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 a BASIX certificate is required. The Applicant has provided and updated BASIX Certificate (Document no. 1751589S_02 dated 05 September 2025).

Penrith Local Environmental Plan 2010 (PLEP)

18. The parties agree and I accept that the relevant provisions of the PLEP have been taken into consideration in assessment of the amended application. I note the following:

19. The Site is zoned R2 Low Density Residential under the PLEP and ‘dwelling houses’ are permissible with consent. Pursuant to cl 2.3 the proposed development is consistent with the objectives of the R2 zone.

20. Pursuant to cl 2.7, demolition is permissible with consent.

21. Pursuant to cl 4.1, The Site is subject to a minimum lot size of 550m2. The Site is 701.4m2. No subdivision is proposed as part of the DA.

22. Pursuant to cl 4.3, the prescribed maximum height control of 8.5 metres is applicable to the Site. The DA seeks consent for construction of a single storey secondary dwelling with a maximum building height of 3.75m.

23. Pursuant to cl 5.21(2) – Flooding planning, the consent authority must be satisfied the development:

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

19. Pursuant to cl 5.21(3), the consent authority must consider the following matters:

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

20. The DA was supported by a Flood Assessment prepared by Martens and Associates (Issue 1, dated 13 November 2024, Reference P2410133JR02V01), which the parties agree, that the proposed development is compatible with the flood function and behaviour on the land, and will not adversely affect flood behaviour affecting other properties and developments, and the Flood Assessment demonstrates that the proposed dwelling will not cause any material impact on the Site. The DA, as amended, proposes the use of flood compatible materials to ensure the proposed development does not impact flood behaviour on the land.

21. The DA, as amended, is also supported by a Flood Emergency Response Plan prepared by Martens and Associates (Issue 1, dated 07 July 2025, Reference P2410133JR03V01). This document outlines the evacuation of people from the Site can be achieved, ensuring the proposed development will not have any adverse impacts on the safe occupation and efficient evacuation of people on the Site in the event of a flood. The parties also agree that the Flood Emergency Response Plan, demonstrates that measures to mitigate risk of life in a flood event have been implemented, including the use of flood compatible materials. Condition 35 in Annexure A on the DA as amended, requires ensuring the under-croft area of the proposed development is not to be enclosed, or used for storage, to ensure the under croft area remains open for overland flows at all times.

22. The parties agree, and I am satisfied that the DA, as amended, satisfies the matters set out in cl 5.21(2) and subcl (3), and that the proposed development will not have any adverse impact on the flood flow and behaviour of the Site, will not increase any risk to people or property, ensures the safe occupation and efficient evacuation of the Site in the event of a flood, and incorporates appropriate flood mitigation strategies and measures.

23. Pursuant to cl 7.1 – Earthworks, the parties agree, and I accept that the proposed development is unlikely to disrupt or have any detrimental effect on existing drainage patterns and soil stability, affect the likely future use of the Site or affect the amenity of adjoining properties as the proposed development proposes minor earthworks, and the proposed dwelling is to be located on raised footings.

24. Pursuant to cl 7.4 – Sustainable development, the DA as amended is supported by a BASIX Certificate.

25. Pursuant to cl 7.6 – Salinity, the parties agree, and I accept that the proposed development is unlikely to have any impact on salinity processes, due to the minimal earthworks and excavation works proposed by the DA, as amended.

26. Pursuant to cl 7.7 – Servicing, the parties agree, and I accept that the proposed development will be connected to necessary services including water, sewerage and electricity. As the proposed development is a secondary dwelling on a Site in a residential area which is already connected to these essential services.

Penrith Development Control Plan 2014 (PDCP)

27. Pursuant to Part A, Part 1.3 of the PDCP applies to the Site, and the Statement of Environmental Effects in the Class 1 Application addresses these design control requirements.

28. Pursuant to Chapter C3, Part 3.5 Flood Planning, Control 3(e) provides:

“e) Any portion of buildings subject to inundation shall be built from flood compatible materials.”

29. In response to Councils contentions, the Applicant has amended the DA to incorporate open style stairs, open style fencing and an elevated rainwater tank, satisfying Control 3(e) of the PDCP (see Drawing DA-201 and DA-202 of the Architectural Plans, Revision F). The parties agree, and I am satisfied that the matters set out in Chapter C3, of the PDCP are addressed by the amended DA.

30. Pursuant to Chapter D4, Part 2.3.2 Secondary Dwellings, prescribes that the minimum landscaped area for secondary dwellings in R2 zone is 50% of the site. The DA, as amended, proposes a total landscaped area (existing and proposed) of 351.8m2 being 50.2% of the total Site area (see drawing DA-102, Revision F, dated 01 July 2025 of the Architectural Plans of the Amended Materials). The parties agree, and I am satisfied that the matters set out in D4, Part 2.3.2 of the PDCP are addressed by the amended DA.

Conclusion

31. Based on the Amended Materials and Conditions of Consent, the parties agree, and I am satisfied that the Proposed Development can be approved taking into consideration the matters in s 4.15(1) of the EPA Act.

32. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

33. I have considered the jurisdictional prerequisites, and I am satisfied that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

34. 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.

Orders

35. The Court orders that:

36. The appeal is upheld.

37. Development Application DA24/0900 for the demolition of an existing shed and garage and construction of a detached secondary dwelling, on land identified as Lot 47 in DP243891, also known as 33 Glencoe Avenue, Werrington County NSW 2747, is determined by the grant of development consent subject to the conditions of consent contained in Annexure A.

……………………

L Coetzee

Acting Commissioner of the Court

Annexure A (124 KB, pdf)

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