Houblos v PENRITH CITY COUNCIL

Catchwords: DEVELOPMENT APPLICATION – application seeking development consent for the use of existing shed – conciliation conference – agreement between the parties – orders
BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders

Legislation Cited: Biodiversity Conservation Act 2016, s 7.7
Environmental Planning and Assestment Act 1979, ss 4.15, 6.22, 6.23, 6.25, 8.7, 8.25; Sch 1, Pt 2, s 23
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Penrith Local Environmental Plan 2010, cll 4.3, 7.4
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category: Principal judgment

Parties: Ali Houblos (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
A Gough (Solicitor) (Applicant)
J Wauchope (Solicitor) (Respondent)
Solicitors:
Storey & Gough Law (Applicant)
Dentons (Respondent)

File Number(s): 2024/348663;
2024/372836

Publication restriction: Nil

JUDGMENT

1. This judgment deals with the following two appeals:

2. Proceedings no 2024/348663 is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against Penrith City Council’s (Council) refusal of the applicants’ development application DA24/0439 (DA) for the future use of an unauthorised shed for the storage of the owners’ vehicles on land legally described as Lot 8 DP 224800 and known as 131 Tadmore Road, Cranebrook ( Site).

3. Proceedings no 2024/372836 is an appeal pursuant to s 8.25 of the EPA Act against the Council’s refusal of the applicant’ s Building Information Certificate Application No BC24/0006 (BIC) for the unauthorised shed located towards the rear of the subject property (the Shed).

4. The Shed as erected is 20m long x 25m wide with a height of 7.03m. It contains five double roller doors, a sealed concrete floor, and three industrial car hoists. There is a large concrete apron outside the Shed measuring some 25m x 10m.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 4 March 2025 and reconvened over an extended period. I presided over the conciliation conference.

6. Following the provision of further information and amendment of the DA plans the parties have reached agreement and resolution of each proceeding in accordance with the terms outlined in their executed s 34 written agreements dated 29 and 30 April 2025 (Agreement).

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreements if the Court could have made those decisions in the proper exercise of its functions.

8. The parties’ decisions involve the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, and the function under s 8.25(3)(a) of the EPA Act to direct the issue of the building certificate.

9. There are preconditions to the exercise of those powers and the parties have addressed these preconditions in a joint jurisdictional statement.

10. Following a consideration of the submissions made by the Council and the applicant I am satisfied on the evidence before me that the agreements of the parties in each case is a decision that the Court could have made in the proposer exercise of its functions. In that regard I note the following.

Jurisdictional Preconditions

Proceedings No 2024/348663 – DA Appeal

Owner’s Consent

9. Owner’s Consent by the registered proprietor of the site accompanies the DA in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

Notification

10. The DA as lodged was notified by the Council between 17 July 2024 and 30 July 2024 and the Council received no objections to the proposed development.

11. Following the appeal the Council agreed to the amendment of the DA with the inclusion of a Vegetation Management Plan (VMP) and a further plan (Amended DA).

12. The Amended DA was not renotified as the Council formed the view that the amendments to the DA did not increase its environmental impacts, in accordance with Sch 1, Pt 2, s 23 of the EPA Act.

Biodiversity Conservation Act 2016

13. Section 7.7 of the Biodiversity Conservation Act 2016 (BC Act) requires a development application for development that is likely to significantly affect threatened species to be accompanied by a biodiversity development assessment report (BDAR).

14. The Council is satisfied that the proposed development does not involve works or an activity which would exceed the Biodiversity Offset Scheme threshold or that would have a significant impact on threatened species. As such a BDAR is not required.

15. However, the property does contain areas of significant biodiversity. The applicants have sought to address the disturbed areas of biodiversity on the site through a VMP. The VMP sets out measures to restore, maintain and protect the property’s biodiversity, including the planting of disturbed areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 prevents a consent authority from granting consent to the carrying out of any development on land unless:

17. It has considered whether the land is contaminated, and

18. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out or, if the land requires remediation to make it suitable, it is satisfied that the land will be remediated before the land is used for the relevant purpose.

19. The Council submits and I accept that the proposed development does not seek to change the types of uses on the property or the intensity of development on the land. Therefore, the land is said to be suitable for the proposed development.

Penrith Local Environmental Plan 2010

Zoning and Permissibility

18. The site is situated within Zone RU4 Primary Production Small Lots pursuant to the provisions of Penrith Local Environmental Plan 2010 (LEP 2010).

19. The site is presently used for the purpose of a dwelling house, and the Shed, which is intended to store a maximum of 20 vehicles over an area of 200m2, is described as an ancillary use to the residential use.

20. Development for the purpose of a dwelling house is permissible with consent pursuant to the Land Use Table for the RU4 zone and the Council accepts that the development is an ancillary use.

Sustainable Development

21. The Court must consider the following matters in granting consent to development under cl 7.4 of the LEP 2010:

(a) conserving energy and reducing carbon dioxide emissions,

(b) embodied energy in materials and building processes,

(c) building design and orientation,

(d) passive solar design and day lighting,

(e) natural ventilation,

(f) energy efficiency and conservation,

(g) water conservation and water reuse,

(h) waste minimisation and recycling,

(i) reduction of vehicle dependence,

(j) potential for adaptive reuse.

22. The Council is satisfied that proposed development is not antipathetic to any of the considerations arising from cl 7.4 of LEP 2010 as far as they are relevant to the proposed storage use and I also accept that to be the case. In that regard, it is to be noted that condition 1 of the DA requires the installation of a rainwater tank which will regulate the flow of stormwater and facilitate its re-use.

23. Condition 5 of consent makes it abundantly clear that proposed storage use of vehicles owned by the owner of the land does not authorize intensification of the residential use of the land nor importantly does the consent to the use allow the introduction of commercial or industrial activity onto the property.

Proceedings No 2024/372836 – BIC Appeal

Environmental Planning and Assessment Act 1979

24. The applicant for the building certificate under s 6.22(a) of the EPA Act is the owner of the land on which the Shed is erected.

25. Section 6.25(1) of the EPA Act provides that:

(1) A building information certificate is to be issued by a council only if it appears that—

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

26. In refusing the BIC on 1 October 2024 the Council was of the view that there were matters discernible by the exercise of reasonable care and skill that would entitle the Council to take proceedings for an order or injunction requiring the building to be demolished. However, the Council now accepts that a building information certificate should be issued having regard to the matters specified in s 6.25(1) of the EPA Act due to the following:

27. The preparation of a VMP agreed between the parties; and

28. The anticipated resolution of Proceedings No 2024/348663 by agreement under s 34 of the LEC Act. This agreement will result in Development Application No DA24/0439 for the future use of the Shed be determined by the grant of consent subject to conditions.

29. The Court has the power to direct the Council to issue a building information certificate in such terms and on such conditions as the Court thinks fit under s 8.25(3)(a) of the EPA Act.

Conclusion and orders

28. For the above reasons I am satisfied that the parties’ decision in each appeal is within power as required by s 34(3) of the LEC Act. Accordingly, I now dispose of the proceedings in accordance with their decisions.

29. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

30. The Court notes that:

31. Penrith City Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA24/0439 in accordance with the documents listed below (the Amended Development Application):

(a) Vegetation Management Plan prepared by Enviro Ecology, dated August 2024; and (b) Plan of permitted storage area, prepared by Ali Houblos, dated 13 March 2025 and drawing No Sheet 1 of 1.

Orders

Proceedings No 2024/348663

31. The Court orders that:

32. The appeal is upheld.

33. Development Application DA24/0439 for the use of an existing shed for the purpose of the storage of cars owned by the occupants / registered owners of the Site at 131 Tadmore Road, Cranebrook, being Lot 8 in DP 224800 is determined by the grant of consent subject to conditions contained in Annexure A.

Proceedings No 2024/372836

32. The Court orders that:

33. The appeal is upheld.

34. The respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to “metal shed” depicted and identified in the plans at Annexure B at 131 Tadmore Road, Cranebrook, being Lot 8 in DP 224800 within 14 days of receiving certification of the completion of the works required by condition 7(a) of development consent DA24/0439 issued by the Land and Environment Court in proceedings 2024/348663.

S Dixon

Senior Commissioner of the Court

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Annexure A

Annexure B