JCL Development Group Pty Ltd as trustee for JCL Development Group Trust v Campbelltown City Council

Legislation Cited: Biodiversity Conservation Act 2016, Pt 7
Coal Mine Subsidence Compensation Act 2017, s 22
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Campbelltown Local Environmental Plan 2015, cll 2.3, 2.6, 2.7. 4.1, 5.10, 6.2, 7.1, 7.10, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 2.6, 6.6, Chs 2, 6, Pts 2.3, 6.2

Texts Cited: Campbelltown Development Control Plan 2015
Campbelltown City Council Community Participation Plan 2019
Waste Classification Guidelines 2014

Category: Principal judgment

Parties: JCL Development Group Pty Ltd as trustee for JCL Development Group Trust (Applicant)
Campbelltown City Council (Respondent)

Representation: Counsel:
Jacinta Reid (Applicant)
Chris Shaw (Respondent)
Solicitors:
Miller Prince (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2024/00336079

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2359/2024/DA-SW (DA) for the demolition of existing buildings, civil works including earthworks, stormwater, roads, retaining walls and services to facilitate a Torrens title subdivision consisting of 45 residential lots at 21 Cummins Road and 28 Payten Street, Menangle Park.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, on the 4 March 2025. I have presided over the conciliation conference which commenced with a site inspection. There were no submissions to the DA.

3. During the s 34 conciliation conference parties came to an in-principal agreement and the s 34 conciliation conference was adjourned to 11 March 2025 to allow time for parties to consider and revise the conditions of consent based on an amended development application (the Amended DA). The conciliation conference was subsequently further adjourned to 14 March 2025 to allow the parties time to finalise the s 34 agreement and conditions of consent based on an amended development application (the Amended DA).

4. The Amended DA, seeks consent for: the demolition of existing buildings, civil works including earthworks, stormwater, roads, retaining walls and services to facilitate the Torrens title subdivision of land consisting of 43 residential lots and one (1) residue lot for a temporary on-site detention basin in Stage 1 and the subdivision of the residue lot into two (2) residential lots following the decommissioning of the temporary on-site detention basin in Stage 2 on land legally described as: Lot 6 in DP10718 (known as 18 Payten Street, Menangle Park), Lot 1 in DP1301868 (known as 21 Cummins Road, Menangle Park) and Lot 2 in DP1301868 (known as 28 Payten Street, Menangle Park) (Site).

5. Under s 38(1) of the Environmental Protection and Assessment Regulation 2021 (EPA Regulation), the Respondent has approved to the Applicant amending the DA in accordance with the Amended DA Application

6. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions and the Applicant paying an agreed amount of the Respondents costs thrown away as a result of the Amended DA.

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. 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.

8. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Matters

Owners Consent

9. The parties advise that Owners Consent for both the subdivision and road works on Payten Street and Cummins Road has been provided in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021. Lot 1 in DP1301868 and Lot 2 in DP1301868 is owned by the Applicant whilst Lot 6 in DP10718 is owned by Rogan Property Group Pty Ltd.

Community Participation

10. The DA was notified in accordance with the Campbelltown City Council Community Participation Plan 2019 and was publicly exhibited between 7 August 2024 and 5 September 2024. No submissions or objections were received.

Environmental Planning and Assessment Act 1979

11. Pursuant to s 4.46 of the EPA Act, the Amended DA is identified as Integrated Development.

Coal Mine Subsidence Compensation Act 2017 (CMSC Act)

12. The site is located within a Mine Subsidence District. Pursuant to s 22 of the CMSC Act, the DA would require approval from the Chief Executive “to alter or erect improvements, or to subdivide land, withing a mine subsidence district’. The Respondent forwarded the original DA to the Subsidence Advisory and received General Terms of Approval and standard conditions to be included in any development consent from the Subsidence Advisory on 30 August 2024. The parties advise that the General Terms of Approval from the Subsidence Advisory have been included in the Conditions of Consent in Condition 1.

Rural Fires Act 1997 (RF Act)

13. The site is located on bushfire prone land. Pursuant to s 100B of the RF Act, the DA was to the Rural Fire Service (RFS) and received concurrence in support of the application on 17 September 2024 along with standard conditions to be included in any development consent. The parties advise that the General Terms of Approval from the RFS have been included in as Condition 1 in the Conditions of Consent.

Biodiversity Conservation Act 2016 (BC Act)

14. Pursuant to Pt 7 of the BC Act, the Applicant has prepared a Flora and Fauna Impact Assessment (Narla, Final v2.0, Dated 8 January 2024). This report assessed the Biodiversity Values (BV) and confirmed that no areas mapped as containing BV are located within or adjacent to the subject site. The proposed development will not impact native vegetation within the BV Map and requires the removal of less 0.25ha of native vegetation and therefore the Biodiversity Offsets Scheme does not apply to the development.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

15. Pursuant to s 4.6 of the Resilience and Hazards SEPP, a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

16. The Applicant has prepared a combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation report prepared by Sydney Environmental Group (Report No. 1318-PSIDSI-01-141021.V1F, Dated 14 October 2021). The report concluded that the site was suitable following implementation of several recommendations including:

(a) Preparation of a Remedial Action Plan (RAP) which was prepared on behalf of the Applicant by Sydney Environmental Group (Report No. 1318-RAP-01-080623.V1f, Dated 9 June 2023). (b) Undertake a hazardous building materials survey of the structures present on-site prior to demolition. (c) Following removal of hazardous building materials (if identified) and subsequent demolition of the building materials, a clearance inspection should be carried out by an appropriately qualified occupational hygienist. (d) A waste classification assessment should be carried out on any soil proposed for disposal off-site as per the NSW EPA Waste Classification Guidelines.

2. Condition of Consent 15 relates to contamination and remediation and requirements to comply with the RAP and to complete additional supplementary contamination assessment to address data gaps identified in the previous assessments prior to the commencement of works. Therefore, The Court can be satisfied that contamination has been considered, and the site is suitable for the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

16. Chapter 2 of the Biodiversity and Conservation SEPP relates to vegetation in non-rural areas. Pursuant to Chapter 2, s 2.3(1) this chapter applies to the City of Campbelltown and applies to the subject site which is land zoned R2 Low Density Residential and Zone R3 Medium Density Residential. Pursuant to s 2.6 of the Biodiversity and Conservation SEPP, vegetation in a non-rural area of the State to which Pt 2.3 applies must not be cleared without the authority conferred by a permit granted by the council under that Part.

17. Tree removal is proposed as part of this Amended DA. The Applicant has prepared a Flora and Fauna Impact Assessment Report by Narla, (Final v2.0, Dated 8 January 2024) and an Arboricultural Impact Assessment by Tree Survey (Version 1, Dated 22/05/23). Conditions of Consent 12 and 13 specifically outline tree removal, retention, protection and ecological measures to be implemented.

18. The site is located within the Hawkesbury-Nepean Catchment which is a regulated catchment under the Biodiversity and Conservation SEPP. Pursuant to Ch 6, Pt 6.2, s 6.6(2) development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures: (a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and (b) the impact on water flow in a natural waterbody will be minimised.

19. The Applicant has provided Concept Civil Engineering Plans prepared by Mepstead Associates (Dated 14 November 2024) confirming details of temporary on-site detention basins, stormwater catchment plans, drainage and erosion and sediment controls plans. These plans combined with the Conditions of Consent relating to soil and water management plan (Condition 17) Stormwater Quality (Conditions 24-26) and erosion and sediment control (Condition 27, 35). I am satisfied the effect on water quality will be as close as possible to neutral and the impact on water flow into a natural waterbody will be minimised.

Campbelltown Local Environmental Plan 2015

18. Pursuant to cl 2.3 of the Campbelltown Local Environmental Plan 2015 (CLEP) the Site is zoned R2 Low Density Residential on the north side of Cummins Road and R3 Medium Density Residential on the south side of Cummins Road. The parties submit and I have regard that the proposed subdivision is consistent with the proposed objectives of these zones.

19. Pursuant to cl 2.6 of the CLEP, subdivision of land is permissible with consent.

20. Pursuant to cl 2.7 of the CLEP, demolition works are permissible with consent.

21. Pursuant to cl 4.1 (Minimum Subdivision lot size) applies to the Site and prescribes a minimum lot size subdivision of 420m2 for the portion of the Site zoned R2 Low Density Residential and 300m2 for the portion of the Site zoned R3 Medium Density Residential. The subdivision of the 17 lots from Lot 101-117 on the R2 Low Density Residential Zone portion of the site have areas between 420.2m2 and 705.6m2. The subdivision of the 28 lots from 118 to 144 on the R3 Medium Density Residential Zone portion of the site have areas between 300m2 and 645 m2.

22. Pursuant to cl 5.10 (Heritage conservation), Sch 5 of the Campbelltown LEP is applicable to the Site. The site is not within a Heritage Conservation Zone. An Archaeological Due Diligence Report was prepared (McCardle Cultural Heritage Pty Ltd, dated 4 May 2023) and confirms that the site does not contain areas that are considered to be of potential archaeological sensitivity.

23. Pursuant to cl 6.2 (Public utility infrastructure) and cl 7.10 (Essential Services) is applicable as the Site is identified within an “Urban Release Area” under the CLEP Urban Release Area Map. The consent authority must be satisfied that essential services are available or that adequate arrangements have been made to make the services available for water, sewer, electricity, stormwater drainage, road and vehicular access, telecommunications and gas. A Utility Investigation Report has been prepared by Mepstead and Associates (dated 5 March 2025) which the confirm the required services can be made available. The Court can be satisfied with this report and with the Conditions of Consent 61, 62 and 66 for the provision of public utilities infrastructure including supply of water, gas, electricity and the management of sewage for the subdivision.

24. Pursuant to cl 7.1 (Earthworks) is applicable to the Amended DA. The proposed earthworks are detailed on the amended engineering plans prepared by Mepstead and Associates dated 12 and 14 November 2024 and are listed in the Table below. The Statement of Environmental Effects outlines that the proposed development will not disrupt or have any detrimental effect on drainage patterns and soil stability in the locality of the development or the likely future use/redevelopment of the land. Additionally, the Court can be satisfied that the imposed Conditions of Consent 47-51 pertaining to earthworks will ensure that the development is delivered with consideration of the above matters.

Campbelltown (Sustainable City) Development Control Plan 2015 (DCP 2015)

19. The Campbelltown (Sustainable) Development Control Plan 2015 applies to the site and the parties advise that the amended DA satisfactorily address the provisions of the DCP 2015 that were raised in the Statemetnt of Facts and Contentions.

Conclusion

20. In consideration of the advice of the parties provided in paragraphs [9]-[20] above, I am satisfied that:

21. The Applicants Amended DA can be approved having regard to the matters listed in s 4.15(1)(b) – (e) of the EPA Act;

22. The jurisdictional prerequisites in which I must be satisfied before I can exercise the power under s 4.16 of EPA Act have been satisfied;

23. Approval of the development is in the public interest; and

24. 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.

25. 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.

Notes

22. The Court notes:

23. That Campbelltown City Council, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 2359/2024/DA-SW in accordance with the following amended plans (Amended DA):

| Drawing No and Revision | Title | Prepared by | Date | | Sight Lines and Tree Planting Plans | | 1. | Drawing No. 6067-DA-SDP, Rev D | Sight Drawing Plan | Mepstead & Associates | 14 November 2024 | | 2. | Drawing No. 6067-DA-STPP, Rev E | Tree Planting Plan | Mepstead & Associates | 10 February 2024 | | Concept Civil Engineering Plans | | 3. | Drawing No. 6067-DA-100-01_D, Revision D | Cover Sheet, Locality Plan and Drawing Index | Mepstead & Associates | 14 November 2024 | | Drawing No. 6067-DA-100-01_D, Revision D | Construction Notes | | Drawing No. 6067-DA-100-01_D, Revision D | Civil Works Plan and Civil Legend | | Drawing No. 6067-DA-100-01_D, Revision D | Civil Works Plan – Sheet 1 of 2 | | Drawing No. 6067-DA-100-01_D, Revision D | Civil Works Plans – Sheet 2 of 2 | | Drawing No. 6067-DA-100-01_D, Revision D | Bulk Earthworks Plan | | Drawing No. 6067-DA-100-01_D, Revision D | Site Section A and B | | Drawing No. 6067-DA-100-01_D, Revision D | Site Section C | | Drawing No. 6067-DA-100-01_D, Revision D | Typical Pavement detail, Cummins Road typical cross section, longitudinal section and cross sections | | Drawing No. 6067-DA-100-01_D, Revision D | Cummins Road cross sections | | Drawing No. 6067-DA-100-01_D, Revision D | Payten Street typical cross section and longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Payten street cross section | | Drawing No. 6067-DA-100-01_D, Revision D | Proposed road one longitudinal section and typical cross section | | Drawing No. 6067-DA-100-01_D, Revision D | Proposed road one cross sections | | Drawing No. 6067-DA-100-01_D, Revision D | Proposed road two typical cross section and longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Proposed road two cross sections | | Drawing No. 6067-DA-100-01_D, Revision D | Proposed road three typical section and longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Proposed road three cross sections | | Drawing No. 6067-DA-100-01_D, Revision D | Retaining wall location plan | | Drawing No. 6067-DA-100-01_D, Revision D | Retaining wall RW A, RW B and RW C Longitudinal sections | | Drawing No. 6067-DA-100-01_D, Revision D | Retaining wall RW D & E Longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Stormwater catchment plan and pit schedule | | Drawing No. 6067-DA-100-01_D, Revision D | Drainage line A and Line B1 to B3 Longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Drainage line B3 to E6 Longitudinal Section | | Drawing No. 6067-DA-100-01_D, Revision D | Drainage line C and D Longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Drainage line E1 to E5 longitudinal section | | Drawing No. 6067-DA-100-01_D, Revision D | Drainage line E5 to E8 and line H Longitudinal sections | | Drawing No. 6067-DA-100-01_D, Revision D | Drainage line F and G Longitudinal sections | | Drawing No. 6067-DA-100-01_D, Revision D | Water quality catchment plan | | Drawing No. 6067-DA-100-01_D, Revision D | Temporary OSD basin details | | Drawing No. 6067-DA-100-01_D, Revision D | Temporary OSD basin retaining wall longitudinal sections | | Drawing No. 6067-DA-100-01_D, Revision D | Stormwater drainage calculations- sheet 1 of 2 | | Drawing No. 6067-DA-100-01_D, Revision D | Stormwater drainage calculations- sheet 2 of 2 | | Drawing No. 6067-DA-100-01_D, Revision D | Sediment and erosion control plan | | Drawing No. 6067-DA-100-01_D, Revision D | Sediment and erosion control plan details | | Drawing No. 6067-DA-100-01_D, Revision D | Signage and line marking plan | | Drawing No. 6067-DA-100-01_D, Revision D | Ultimate drainage plan | | Reports | | 4. | Amendments to Engineering Plans Rev D | Mepstead & Associates | 12 November 2024 | | 5. | Traffic Impact Assessment | TTPP | 3 December 2024 | | 6. | Landowner’s Consent for Development Application | Club Menangle | 19 December 2024 | | 7. | Ecologist letter regarding statement of facts and contentions | Land Eco Consulting | 8 January 2025 | | 8. | Utility Investigation Report | Mepstead & Associates | 5 March 2025 |

Orders

23. The Court orders:

24. The appeal is upheld.

25. Development consent is granted to Development Application No. 2359/2024/DA-SW (as amended) for the demolition of existing buildings, civil works including earthworks, stormwater, roads, retaining walls and services to facilitate the Torrens title subdivision of land consisting of 43 residential lots and one (1) residue lot for a temporary on-site detention basin in Stage 1 and the subdivision of the residue lot into two (2) residential lots following the decommissioning of the temporary on-site detention basin in Stage 2 on land legally described as Lot 6 in DP10718 (known as 18 Payten Street, Menangle Park), Lot 1 in DP1301868 (known as 21 Cummins Road, Menangle Park) and Lot 2 in DP1301868 (known as 28 Payten Street, Menangle Park), is granted subject to the conditions in Annexure A.

26. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the Amended Development Application in the agreed amount of $3,000.

L Coetzee

Acting Commissioner of the Court

Annexure A (413635, pdf)

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