Great River NSW Pty Ltd v Minister for Planning and Public Spaces - [2022] NSWLEC 1162 - NSWLEC 2021 case summary — Zoe

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Great River NSW Pty Ltd v Minister for Planning and Public Spaces

[2022] NSWLEC 1162

Land and Environment Court (NSW)|2021-12-07

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-12-07

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Judgment

COMMISSIONER: In an area 50km west of the Sydney CBD in the Nepean River floodplain, land identified as the Penrith Lakes Scheme is undergoing rehabilitation works following the decommissioning of a quarry. The land is the subject of a site specific state planning instrument, and has been undergoing redevelopment into a regional lake system and park for public recreation, ponds and wetlands providing water treatment and wildlife habitat and includes land zoned for residential, tourism and employment uses. This appeal concerns a development application for the subdivision of a site predominantly zoned for employment in the south eastern corner of that land. The development application was initially lodged by Great River NSW Pty Ltd (Great River) with the Minister for Planning and Public Spaces (Minister) on 18 January 2019, and has undergone a number of amendments since that time. On 16 July 2021, following the expiry of the period after which a development application is deemed to be refused, Great River lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The hearing initially commenced on 7 December 2021, at which time an adjournment was given to allow Great River to obtain certification from the Planning Secretary concerning the provision of designated State public infrastructure, and to obtain further information regarding the assumptions and inputs used in the Hawkesbury-Nepean Valley Flood Management Taskforce Modelling.
Following the resumption of the adjourned hearing in March 2022, further amendments to the development application were made. The amendments to the development application were lodged on the NSW Planning Portal on 4 March 2022 with the agreement of the Minister, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000.
The proposed development, as amended, is for a Torrens title subdivision of 14-98 Old Castlereagh Road, Castlereagh into four lots with a community title subdivision of a fifth large residue lot into 93 community title lots with sizes ranging from 2000m2 to 20,238.2m2 and one community association lot. A further residue lot remains after the community title subdivision, which will become a public road that connects the site to both Old Castlereagh Road and Lugard Street, and provides two internal loop roads. The proposed development also includes an updated Flood Emergency Response Plan (FERP) that has an evacuation trigger of 3-hours and a vehicle cap, and will be enforceable through the community title scheme. The proposed development also includes two vegetation management plans, one which will be registered on the Torrens title lots 200-203, and the other will be registered on the community title scheme, which will provide a structure for the long term management of the land zoned Environment.

[4]

Planning framework

The development of the site is subject to an environmental planning instrument that is specific to the Penrith Lakes Scheme, the State Environmental Planning Policy (Penrith Lakes Scheme) 1989 (SEPP 1989).
The SEPP 1989 was repealed on 1 March 2022 by the commencement of the State Environmental Planning Policy (Precincts - Western Parkland City) 2021 (SEPP 2021). Chapter 5 of the SEPP 2021 concerns the Penrith Lakes Scheme. However, cl 5.8 of the SEPP 2021 contains a savings provision for development applications that were lodged prior to its commencement, such that the application must be determined as if Chapter 5 of the SEPP 2021 had not commenced. For the purpose of determining the development application the subject of the appeal, therefore, the relevant instrument is SEPP 1989.
Pursuant to the SEPP 1989 the majority of the site is zoned Employment, with the areas along Old Castlereagh Road and along the Nepean River zoned Environment.
Clause 22 of the SEPP 1989 concerns development consent for development in the land zoned Employment, and cl 23 concerns development consent for development in the land zoned Environment, as follows: 22 Development on land zoned Employment Development consent must not be granted for development on land zoned Employment unless the consent authority has considered the following - (a) a water quality management plan and water operations plan for the Penrith Lakes Scheme that are endorsed by the Planning Secretary as being appropriate for the Scheme, (b) (Repealed) (c) a traffic and transportation plan that includes proposals about the management of traffic impacts caused by the development, (d) whether a stable foundation exists or can be developed for the development, (e) whether the existing development platform (including subgrade) is or can be adequately protected from scour by the discharge of a 1:100 ARI (average recurrence interval) flood event, (f) whether the proposed development appropriately allows for potential differential settlement given the existing geotechnical conditions and the proposed foundation and for the geotechnical conditions present at the site to prevent excessive total and differential settlement. 23 Development on land zoned Environment Development consent must not be granted for development on land zoned Environment unless the consent authority has considered the following - (a) whether the development is consistent with a plan of management (if any) for the Penrith Lakes Scheme that is endorsed by the Planning Secretary as being appropriate for the Scheme, (b) an Aboriginal cultural heritage assessment for the land (being a written report detailing the results of the assessment and recommendations for actions to be taken before, during and after an activity to manage and protect Aboriginal objects and declared Aboriginal places identified by the investigation and assessment) that has been prepared by a suitably qualified person.
Clause 31 concerns the grant of consent for earthworks, and requires consideration of a number of matters. They are as follows: 31 Earthworks … (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
Clause 33 concerns flood planning, and provides as follows: 33 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of the land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) Development consent must not be granted for development on land to which this Policy applies that is at or below the flood planning level unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (3) Development consent must not be granted for development on land zoned Employment, Residential or Tourism unless the consent authority is satisfied that the development will not adversely affect the safe and effective evacuation of the land and the surrounding area. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this Policy.
Clause 34 concerns arrangements for designated state public infrastructure for urban release areas, which applies to the site. At cl 34(2), development consent cannot be granted unless certification is provided by the Planning Secretary as follows: (2) Development consent must not be granted for the subdivision of land in an urban release area unless the Planning Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that land.
The term 'designated State public infrastructure' is defined in cl 34(5) and includes "State and regional roads".
The site is also subject to a site specific development control plan, the Penrith Lakes Development Control Plan Stage 1 (November 2021) (PLDCP), which applies to the land to which the SEPP 1989 applies.
Part 3.1 concerns flood planning and evacuation, and at Section 3.1.1 there are specific flood evacuation considerations as follows: "1) Development that will increase the number of people on the land below the probable maximum flood (PMF) level at Penrith Lakes covered by this DCP must be consistent with the Flood Response Guideline (if available), or the objective to achieve early site evacuation and/or non-attendance in the event of a flood or probable flood. 2) Development consent must not be granted to development on land below the PMF level that will increase the number of people on the land, unless the consent authority is satisfied that: a) appropriate systems and processes will be in place to ensure the efficient evacuation of the site and surrounding area and will not adversely impact on the evacuation routes in the Hawkesbury-Nepean Valley floodplain in the event of a flood; and b) a flood emergency management plan has been prepared. 3) The flood emergency management plan must address the following matters: a) an overview of the flood risk and resilience of the site and the surrounding area; b) details the requirements for governance and documentation of flood preparedness and response at Penrith Lakes; c) measures to be undertaken by occupants of the site to manage the risk to life in the event of a flood; d) measures to be undertaken by occupants of the site to ensure the efficient evacuation of people in the event of an early flood warning; e) immediate flood relief and recovery actions to be undertaken by occupants of the site following a flood event or false alarm of a flood event; and f) long-term review of systems and processes to ensure the efficient evacuation of the site and recovery measures to be undertaken by occupants of the site following a flood event or false alarm of a flood event. 4) Only strata or community title subdivision is permitted, unless measures compliant with provisions 2 and 3 can otherwise be demonstrated. 5) Despite any other provision in the DCP, the consent authority must not grant consent to a development application for development on land below the PMF in the Penrith Lakes precinct unless provisions 1, 2 and 3 are satisfied."
The Flood Response Guideline referred to within Section 3.1.1 has not yet been issued.
Part 5.4 of the PLDCP sets out the desired future character for the Employment precinct, and at Section 5.4.3 there are a number of controls for subdivision design. Those controls include a minimum allotment size of 1500m2, a minimum frontage of 30m, and a requirement for strata or community title subdivision "unless measures compliant with flood evacuation provisions outlined in Section 3.1.1 can otherwise be demonstrated". The proposed development meets the controls concerning site frontage and allotment size.

[16]

Flood evacuation

The Minister raised a number of contentions concerning flood evacuation (Pt 1 Contentions 4, 4A, 5 and 6), including that the development application did not demonstrate a safe and effective means of evacuating the land in the event of a flood, and therefore fails to demonstrate compliance with the flood planning and evacuation controls in the PLDCP, or with the objectives of cl 33(1) of the SEPP 1989.
I note also that, following the rehabilitation works that are currently ongoing on the site, the resulting land form will be a minimum of 27 AHD, which is above the flood planning level of 26.8 AHD (1 in 100 year flood level of 25.8m plus 1m freeboard), but is below the probable maximum flood level of 32.6 AHD. As such, cl 33(2) of the SEPP 1989 is not strictly applicable, although cl 33(3) nevertheless requires satisfaction that "the development will not adversely affect the safe and effective evacuation of the land and the surrounding area" and section 3.1.1 of the PLDCP applies.
The proposed development is now for a community title subdivision, with an amended FERP, which incorporates a revised evacuation trigger (3-hours before the evacuation of surrounding areas) and vehicle caps. The community title subdivision resolves the concerns identified by Mr Babister and Ms Harrison concerning the evacuation of discrete businesses, and Mr Babister, Ms Harrison, Mr Molino and Dr Martens agree on the revised evacuation trigger and the vehicle caps, which will be reviewed and updated once the NSW State Government prepares the "Penrith Lakes Early Warning System" that is envisaged once the Flood Response Guidelines are finalised. As such, they agree that the FERP now provides systems and processes that will ensure efficient evacuation.
As a result, the Minister agrees, and I accept, that the proposed development incorporates measures to manage risk to life from flood and to provide efficient evacuation of the site, which will not adversely affect the safe and effective evacuation of the land and surrounding area. As such, the objectives in cl 33(1) of the SEPP 1989 are met, I am satisfied of the matters required by cl 33(3) of the SEPP 1989, and Section 3.1.1 of the PLDCP is similarly satisfied.

[23]

Development consent should be granted

For the above reasons, each of the contentions raised by the Minister in the Amended Statement of Facts and Contentions have now been addressed through the amendments to the proposed development, by agreement on conditions of consent and/or on the basis of expert evidence. In addition, the contentions that raised insufficient information, have each been resolved, largely by the provision of that information. The Minister agrees that there are no remaining contentions that warrant refusal of the development application.
The proposed development involves works within an area that is cleared and currently undergoing rehabilitation, with only a relatively small number of trees to be removed on a portion of the site. The two vegetation management plans will ensure that the two areas of biodiversity value will be enhanced and restored. The proposed development includes a FERP that will ensure that the evacuation of the area will take place in advance of the surrounding areas, and therefore will not adversely impact the evacuation of the local area. The parties have agreed on conditions of consent that will minimise a range of impacts that have been identified by the Minister. The proposed development is therefore suitable for the site and will not result in any unacceptable impacts.
In addition, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction, which have not been dealt with in the above reasons for judgment, have been met:

Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. A site audit report dated 9 September 2021 refers to the previous audit of the site in February 2016 which confirms that the site is suitable for residential use, and confirms that the material imported to the site for the rehabilitation works meets the definition of either Virgin Excavated Natural Material or Excavated Natural Material.
Consideration has been given to the matters set out in cl 22 of the SEPP 1989, based on the evidence in the proceedings, including the joint report of the geotechnical engineers and a number of Traffic Impact Assessments.
Consideration has been given to the Aboriginal Cultural Heritage Assessment, prepared by EcoLogical Australia dated 20 December 2021, in satisfaction of cl 23(b) of the SEPP 1989. There is no plan of management for the Penrith Lakes Scheme that is required to be considered pursuant to cl 23(a).
The PLDCP is in place and meets the requirements of cl 36 of the SEPP 1989.

The parties have not identified any other preconditions to the grant of development consent. Accordingly, development consent should be granted, subject to the agreed conditions of consent.