Ishak v Penrith City Council

Texts Cited: NSW Rural Service, Planning for Bush Fire Protection, November 2019

Category: Principal judgment

Parties: Alan Ishak (First Applicant)
Michelle Ishak (Second Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
M Jaku (Solicitor) (Applicants)
D Johnson (Solicitor) (Respondent)
Solicitors:
Jaku Legal (Applicants)
Penrith City Council (Respondent)

File Number(s): 2025/00323179

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA24/0591. The application seeks development consent for a dwelling house and swimming pool (DA) at 10 Alma Crescent, Emu Heights (Lot 232, DP 16501).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending development application DA24/0591 in accordance with the document listed below:

3. Flood Evacuation Plan prepared by Martens & Associates Pty Ltd dated 7 November 2025.

4. On request of the parties, the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) which was held on 5 December 2025. I have presided over the conciliation conference.

5. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that ‘there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owners consent

9. I am satisfied that owners’ consent has been provided, which accompanied the Class 1 application.

Community notification and objections

10. The Respondent notified the DA between 14 August 2024 to 28 August 2024. No submissions were received.

Environmental Planning and Assessment Act 1979 (NSW)

11. Section 4.14 applies as the site is mapped as Bushfire Prone Land under the Penrith Local Environmental Plan 2010 (PLEP). The DA is supported by the Bush Fire Assessment Report prepared by Bushfire Management Consultants dated 29 July 2024, which addresses the relevant provisions including the Planning for Bush Fire Protection Guidelines, prepared by the NSW Rural Fire Service and NSW Department of Planning, Housing and Infrastructure (Guidelines). The jurisdictional statement sets out that the Respondent is satisfied that the amended DA complies with the relevant requirements of the Guidelines. I accept the parties’ agreement that the relevant provisions of s 4.14(1)(a) have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located within the Hawkesbury-Nepean Catchment. With consideration of the limited scale of the proposal, detailed consideration in the jurisdictional statement and the Stormwater Management Plans prepared by C.K Engineering Services dated 20 September 2024 (detailing sediment and erosion measures, and collection and reuse of rainwater), Flood Risk Assessment prepared by C.K. Engineering Services dated November 2024 and the Flood Evacuation Plan prepared by Martens dated November 2025 (Flood Reports), I accept that ss 6.6, 6.7, 6.8 and 6.9 are satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree that the proposal does not change the use of the site, the site has a long history of residential use and there is no reason to suspect the site is contaminated. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. The parties agree and I accept that the DA is accompanied by a BASIX Certificate that meets the provisions of SEPP Sustainable Buildings (including s 2.1 embodied emissions), and s 27 of the EPA Reg.

PLEP

15. The site is zoned R2 Low Density Residential. The proposed development for a dwelling house is permitted with consent and the parties have had regard to the objectives of the zone.

16. The parties agree and I accept that the following applicable provisions are met:

17. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 8.5m. The amended DA is a maximum of 8m.

18. Clause 5.21 flood planning applies to the site. On the basis of the jurisdictional statement, Flood Reports and Stormwater Plans, I accept that the provision has been satisfied. The proposal has demonstrated it is compatible with the flood behaviour of the land, will not detrimentally or adversely affect flood behaviours onto adjoining properties or the environment and incorporates measures to manage risk to life. I also accept that the parties have adequately considered the matters under s 5.21(3) and included appropriate conditions of consent, including the registration on title of the evacuation response plan.

19. Clause 7.1 earthworks applies to the amended DA. I accept the parties’ agreement that the amended DA meets the provisions as detailed in the jurisdictional statement and conditions of consent.

20. Clause 7.4 sustainable development applies to the proposal and I accept that adequate regard has been had in the design of the proposal as set out in the jurisdictional statement and subject to the conditions of consent.

21. Clause 7.6 salinity applies to the site. On the basis of the jurisdictional statement, I accept that the provisions have been considered.

22. Clause 7.7 servicing applies to the development. I accept that all services are either currently provided or will be made available for the proposed development.

23. Clause 7.30 urban heat applies to the proposed development. I accept on the basis of the Stormwater Plans, Materials Schedule (undated) and Landscape Plan prepared by Rafla Design dated 20 April 2024 that adequate measures have been incorporated into the design of the dwelling.

Heads of consideration

17. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

18. 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.

19. 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 that were originally in dispute between the parties.

20. I have considered the jurisdictional prerequisites 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

21. The Court orders:

22. The appeal is upheld.

23. Development consent is granted to Development Application No. DA24/0591, for a dwelling house at 10 Alma Crescent, Emu Heights, subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A (254 KB, pdf)