Ingleburn Rd 149 Pty Ltd ATF Crown Trust 52 v Camden Council

Category: Principal judgment

Parties: Ingleburn Rd 149 Pty Ltd ATF Crown Trust 52 (Applicant)
Camden Council (Respondent)

Representation: Counsel:
A Knox (Solicitor) (Applicant)
K Huxley (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Holding Redlich (Respondent)

File Number(s): 2024/421997

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. DA/2024/114/1 for the demolition of existing structures, dam de-watering, remediation of contaminated land and subdivision creating 36 Torrens title residential lots, three residue lots and land dedication to facilitate future road upgrades, including bulk earthworks, road construction, drainage construction, servicing, landscaping and associated works (the proposal), at 100, 118, 130 Byron Road (Lots 86 and 86A in DP 8979 and Lot 1 in DP 368234) (the site), by Camden Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 November 2025. I presided over the conciliation conference. 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. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| Subdivision Plans | | 1. | Reference | Title | Rev | Prepared by | Date | | 4021/30 | Stage 1 Plan of Subdivision | B | YSCO Geomatics | 26 September 2025 | | 4021/30 | Stage 2 Plan of Subdivision | B | YSCO Geomatics | 26 September 2025 | | Engineering Plans | | 2. | Reference | Title | Rev | Prepared by | Date | | Sheet 1/22 | Title Sheet and Locality Sketch | - | YSCO Geomatics | 8 August 2025 | | Sheet 2/22 | Plan Sheet 1 | - | YSCO Geomatics | 8 August 2025 | | Sheet 3/22 | Plan Sheet 2 | - | YSCO Geomatics | 8 August 2025 | | Sheet 4/22 | Road Long Sections & Typical Sections | - | YSCO Geomatics | 8 August 2025 | | Sheet 5/22 | Road Long Sections & Typical Sections | - | YSCO Geomatics | 8 August 2025 | | Sheet 6/22 | Byron Road Long Section & Typical Cross Section | - | YSCO Geomatics | 8 August 2025 | | Sheet 7/22 | Catchment Concept Plan | - | YSCO Geomatics | 8 August 2025 | | Sheet 8/22 | Proposed Drainage Long Sections within Byron and Ingleburn Road | - | YSCO Geomatics | 8 August 2025 | | Sheet 9/22 | Proposed Drainage Long Sections within Byron and Ingleburn Road | - | YSCO Geomatics | 8 August 2025 | | Sheet 10/22 | General Cut and Fill Works | - | YSCO Geomatics | 8 August 2025 | | Sheet 11/22 | Stormwater Detention and Soil Management Concept | - | YSCO Geomatics | 8 August 2025 | | Sheet 12/22 | Benching Plan | - | YSCO Geomatics | 8 August 2025 | | Sheet 13/22 | Demolition Plan | - | YSCO Geomatics | 8 August 2025 | | Sheet 14/22 | Typical Bio-retention Details | - | YSCO Geomatics | 8 August 2025 | | Sheet 15/22 | 12.5m Bus Turning Movement Plan | - | YSCO Geomatics | 8 August 2025 | | Sheet 16/22 | 19m Semi-trailer Turning Movement Plan | - | YSCO Geomatics | 8 August 2025 | | Sheet 17/22 | Council Road Layout Plan | - | YSCO Geomatics | 8 August 2025 | | Sheet 18/22 | Byron Road Cross Sections | - | YSCO Geomatics | 8 August 2025 | | Sheet 19/22 | Ingleburn Road Cross Sections | - | YSCO Geomatics | 8 August 2025 | | Sheet 20/22 | Draft Drainage Calculations Sheet 1 | - | YSCO Geomatics | 8 August 2025 | | Sheet 21/22 | Draft Drainage Calculations Sheet 2 | - | YSCO Geomatics | 8 August 2025 | | Sheet 22/22 | Draft Drainage Calculations Sheet 3 | - | YSCO Geomatics | 8 August 2025 | | OTHER DOCUMENTS | | Title | Prepared by | Date | | 3. | Aboriginal Heritage Due Diligence | McCardle Cultural Heritage | 16 October 2023 | | 4. | Waste Management Plan | Crownland | Undated | | 5. | Stage 2 Building Envelope Plans | Glyde Bautovich | 14 March 2025 |

Pre-conditions to the grant of consent

5. I accept the Council’s assessment that the site will be suitable for the development and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed. The Detailed Site Investigation concluded that the site contains several “potentially contaminated areas”; and is, or can be made, suitable for the purpose for which the development is proposed to be carried out. The Remediation Action Plan submitted as part of the application provides details the remediation work which is to be carried out in accordance with Parts 3.1 – 3.3 of the conditions of consent at Annexure A.

6. Chapter 6 (Water Catchments) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the proposal at s 6.1(d) as the site is on land in the Hawkesbury-Nepean catchment.

7. I am satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised, pursuant to s 6.6(2) of the Biodiversity and Conservation SEPP, having regard to the following conditions of the conditions of consent at Annexure A imposed to regulate sediment and erosion control, 2.1(4), 2.1(6), 3.1(3), 4.1(9), 4.1(10) and 4.2(4), and the following conditions imposed for the collection and discharge of stormwater 1.1(1), 2.1(6), 3.1(3), 4.1(9), 4.1(10) and 4.2(4), 4.4(18) and 4.5(1).

8. Pursuant to s 6.10 of the Biodiversity and Conservation SEPP, I accept the Council’s submission that the development is not likely to have an adverse environmental impact on any adjacent or downstream local government areas.

9. Pursuant to s 6.13 of the Biodiversity and Conservation SEPP, I accept the Council’s submission that the matters in subs (2) have been satisfactorily addressed.

10. State Environmental Planning Policy (Precincts-Western Parkland City) 2021 (WPC SEPP) applies to the site at s 3.5. Table 1 under s 3.10 of the WPC SEPP provides that the planning controls in Appendix 5 of the Camden Growth Centres Precinct Plan (Precinct Plan) apply to land in the Leppington Precinct, which includes the site. The site is zoned R3 Medium Density, and the proposal is permissible with consent pursuant to s 2.6 of the Precinct Plan. The objectives of the R3 zone, which the proposal is consistent with, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

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

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

11. For the purposes of s 4.1AA of the Precinct Plan, I accept the Council’s submission that the applicant has demonstrated that an adequate building envelope can be accommodated on each of the 27 proposed lots less than 300m2 (refer to Building Envelope Plans - Stage 2 (Rev 01) prepared by Glyde Bautovich in Amended DA Documents).

12. For the purposes of s 6.1 of the Precinct Plan, I accept the Council’s submission 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 (conditions 1.1(2) at Annexure A).

13. The application was referred to Endeavour Energy under s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) because the site contains above-ground power lines, and the proposed development will likely require the relocation of electricity pole(s) from within the site. Endeavour Energy was given written notice of the application on 11 April 2024 and the recommended conditions for approval provided in Endeavour Energy's concurrence letter dated 11 April 2024 have been incorporated into the consent by condition 1.1(2) of the conditions of consent at Annexure A.

14. Sydney Water's recommended conditions for approval provided in their letter dated 3 May 2024 have been incorporated into the consent by condition. I accept the Council's submission that although not currently available, wastewater disposal will become available via an extension, adjustment or connection to the mains, prior to the release of the future lots, as confirmed by Sydney Water. The Sydney Water conditions include a requirement that water and wastewater services must be demonstrated prior to the issue of a subdivision certificate, under Part 4.4 condition (9) of the conditions of consent at Annexure A. I am satisfied that adequate arrangements have been made to make that infrastructure available when required.

Conclusion

15. I have considered the submissions made by the Council and the Jurisdictional Statement filed with the Court on 13 November 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

16. The orders of the Court are:

17. The appeal is upheld.

18. The Applicant is to pay the Respondent's costs thrown away pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $9,000 payable within 14 days.

19. Development Application No. DA/2024/114/1 for the demolition of existing structures, dam de-watering, remediation of contaminated land and subdivision creating 36 Torrens title residential lots, three residue lots and land dedication to facilitate future road upgrades, including bulk earthworks, road construction, drainage construction, servicing, landscaping and associated works at 100, 118, 130 Byron Road (Lots 86 and 86A in DP 8979 and Lot 1 in DP 368234) is determined by the grant of consent, subject to the conditions at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (372 KB, pdf)

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