Mark Ventures Pty Ltd v Penrith City Council

Legislation Cited: Biodiversity Conservation Act 2016, ss 7.7, 7.13, 7.16
Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.14, 8.15
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B
Environmental Planning and Assessment Regulation 2021, 38
Penrith Local Environmental Plan 2010, cll 2.6, 2.7, 4.1, 4.1B, 5.21, 7.1, 7.7, 7.30
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, ss 9.4, 9.5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy Amendment (Water Catchments) 2022, cl 6.65

Cases Cited: Shoalhaven City Council v Easter Developments Pty Limited (2024) 261 LGERA 35; [2024] NSWLEC 49

Texts Cited: NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method, 2020
NSW Rural Fire Service, Planning for Bushfire Protection, 2019
Penrith City Council, Community Engagement Strategy and Community Participation Plan, 2022-26
Penrith Development Control Plan 2014

Category: Principal judgment

Parties: Mark Ventures Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
A Knox (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2023/436024

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA22/0835 seeking consent for the demolition of existing structures and consolidation of two lots to facilitate a 14-lot Torrens Title subdivision including construction of an internal road and associated works (Proposed Development) at 262-268 and 270-274 Caddens Road, Claremont Meadows, legally described as Lot 4 DP 27107 and Lot 51 DP 1166569. (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 April 2025. I presided over the conciliation conference.

3. 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.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be various applicable terms in the Penrith Local Environmental Plan 2010 (PLEP), State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), and Biodiversity Conservation Act 2016 (BC Act). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

7. The owner of the Site is the Applicant in these proceedings.

8. The Proposed Development was notified in accordance with the Respondent's Community Engagement Strategy and Community Participation Plan 2022-26 (Community Participation Plan) between 26 September and 24 October 2022. Council received no submissions. The Proposed Development was amended with the leave of the Court on 7 February 2025 and was renotified in accordance with the Community Participation Plan between 12 and 25 March 2025. Council received no submissions.

9. The Site is zoned R2 Low Density Residential and C2 Environmental Conservation under the PLEP. The Site includes a threatened ecological community within the C2 zone area and is also identified as being bushfire prone land under Council’s Bushfire Prone Land Map and the proposed subdivision layout design is consistent with and accommodates these attributes.

10. Subdivision is permissible with consent under cl 2.6 of the PLEP. Demolition is also permissible with consent under cl 2.7 of the PLEP.

11. The Proposed Development complies with the minimum lot width development standard of 15m pursuant to cl 4.1B of the PLEP and complies with the minimum lot size development standard of 550m2 pursuant to cl 4.1 of the PLEP.

12. The Proposed Development has been designed to be compliant with the flood planning provisions of cl 5.21 of the PLEP 2010 and Penrith Development Control Plan 2014 (PDCP). The parties are satisfied as to the relevant matters under cl 5.21(2) of the PLEP and have considered the relevant matters under cl 5.21(3) of the PLEP. Agreed condition of consent 80 requires the works as executed drawings to confirm flood lines once constructed.

13. Limited earthworks are proposed and the parties have considered and are satisfied in relation to the relevant matters under cl 7.1(3). A geotechnical investigation prepared by EI Australia dated 21 March 2022 is filed at Tab 10 of the Class 1 Application and conditions 43, 51 and 80(d) have been agreed.

14. Water, electricity, sewage, stormwater, drainage, and vehicle access will be available at the Site when required: cl 7.7(2), PLEP. Condition 84 has been agreed and requires the relevant certificates and approvals be obtained prior to the issue of a subdivision certificate.

15. In relation urban heat, cl 7.30 of the PLEP requires satisfaction that planning and design measures are incorporated to reduce the urban heat island effect that:

(a) maximise green infrastructure, and

(b) retain water in the landscape, and

(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d) use building, paving and other materials that minimise heat impacts, and

(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

16. The parties explain that the Proposed Development has incorporated green infrastructure through strategically designing the subdivision to have a range of native species planted and through offering the C2 Environmental Conservation land to Council to ensure protection of Claremont Creek and associated bushland. Part of the R2 land comprising significant vegetation is also to be retained and protected. Removal of the Heaton Avenue extension reduces the heat impacts of additional paved areas. I have taken into account the Subdivision Landscape Plan prepared by New Eden Design Drawing 101 Rev D dated 29 July 2024, an extract of which I reproduce below at Figure 3 because it is also relevant to my consideration of the matter as integrated development and the terms of Planning for Bushfire Protection 2019. I will come back to bushfire safety at [25].

17. The Applicant has filed a Targeted Site Investigation, Hazardous Material Survey and Detailed Site Investigation at Tabs 11, 9 and 8 of the Class 1 Application to address the requirements of subss 4.6(2) and (3) of the Resilience and Hazards SEPP. Pursuant to s 4.6 of the Resilience and Hazards SEPP a consent authority must be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability to the site to the proposed development and whether the satisfactory measures are put into place to remediate the land should it be required to do so.

18. The Detailed Site Investigation concludes at page 29 that “the site was suitable for the proposed subdivision and development, subject to the implementation of recommendations….”. Proposed consent condition 1 requires compliance with the Detailed Site Investigation and condition 28 is also proposed in the event of unexpected finds.

19. In light of the above, the parties agree, and the Court is satisfied pursuant to s 4.6(1) of the Resilience and Hazards SEPP that the Site will be suitably remediated for its proposed residential purpose.

20. The DA was lodged on 6 September 2022. Chapters 6 to 12 of the Biodiversity and Conservation SEPP were omitted by State Environmental Planning Policy Amendment (Water Catchments) 2022 (Amending SEPP) on 21 November 2022 and a new Ch 6 was added to the Biodiversity SEPP. These amendments do not apply to the DA because the Amending SEPP includes a savings provision in s 6.65(1) which provides that the provisions of Ch 9 of the Biodiversity SEPP prior to its repeal continue to apply to the DA.

21. The Court can be satisfied that the parties’ experts have taken into account the relevant considerations of Ch 9 of the Biodiversity SEPP, being the general planning considerations set out in s 9.4 and the specific planning policies and related recommended strategies set out in s 9.5. Various conditions of consent relating to water management have been proposed accordingly.

22. The Site includes a threatened ecological community. Under s 7.7 of the BC Act, if a development proposal is likely to significantly affect threatened species, the proposal must be assessed in accordance with the NSW Biodiversity Assessment Method 2020 (BAM) and be the subject of a Biodiversity Development Assessment Report (BDAR). A BDAR was prepared by Cumberland Ecology dated 25 July 2024 and filed with the Court on 3 February 2025.

23. Under s 7.13 of the BC Act, a consent authority is to take into consideration the likely impact of the Proposed Development on biodiversity values as assessed in the BDAR. The parties are satisfied that the BDAR outlines the likely impact of the Proposed Development, and, that the proposed design includes measures to avoid and minimise impacts, including how the development has been sited, and construction management measures. The BDAR also proposes retirement of biodiversity offset credits. The requirements of the BDAR are reflected in the agreed conditions of consent at 19 and 20.

24. Section 7.16 of the BC Act provides that a development application must be refused if a proposed development is likely to have serious and irreversible impacts on biodiversity values. Based on the BDAR, the parties are satisfied that the Proposed Development will not have a serious and irreversible impact on biodiversity.

25. As a consequence of the satisfaction of the provisions of the BC Act there is a tension between the Respondent and the Rural Fire Service in regards to the fact that as the development application is integrated pursuant to s 4.46 of the EPA Act, a bush fire safety authority pursuant to s 100B of the Rural Fires Act 1997 (RF Act) is required. The parties consider that the introduction of a roadway or similar hardstand on a site that is mapped as having high biodiversity values due to the Cumberland Plain Woodland on the Land, is inappropriate, see below at [38].

26. The parties provide the following relevant chronology:

27. The Development was formally referred by the Respondent to the NSW Rural Fire Service (RFS) on 14 September 2022 and general terms of approval (GTAs) were issued on 25 November 2022, a copy of which is provided to the Court. Relevantly, the design of the proposed subdivision is significantly different and at that time proposed an internal new access road and a subdivision layout design for 13 new allotments. I reproduce at Figure 1 an extract of the original proposed subdivision layout design, which is no longer the subject of these proceedings and has been superseded by the proposed subdivision layout design for 8 new residential allotments readily depicted in Figure 2.

28. The 2022 GTAs provide, relevantly, as follows:

“Access – Public Roads

Intent of measures: to provide safe operational access to structures and water supply for emergency services, while residents are seeking to evacuate from an area.

4. Access roads must comply with the following requirements of Table 5.3b of Planning for Bush Fire Protection 2019:

• roads have a minimum 5.5m carriageway width kerb to kerb;

• parking is provided outside of the carriageway width;

• hydrants are located clear of parking areas;

• curves of roads have a minimum inner radius of 6m;

• the maximum grade road is 15 degrees and average grade of not more than 10 degrees or other gradient specified by road design standards, whichever is the lesser gradient;

• the road crossfall does not exceed 3 degrees;

• a minimum vertical clearance of 4m to any overhanging obstructions, including tree branches, is provided;

• traffic management devices are constructed to not prohibit access by emergency services vehicles;

• dead end roads incorporate a minimum 12 metres outer radius turning circle, and are clearly sign posted as a dead end;

• where kerb and guttering is provided, roll top kerbing should be used to the hazard side of the road;

• the capacity of road surfaces and any bridges/causeways is sufficient to carry fully loaded firefighting vehicles (up to 23 tonnes); bridges/causeways are to clearly indicate load rating;

• hydrants are located outside of parking reserves and road carriageways to ensure accessibility to reticulated water for fire suppression; and

• hydrants are provided in accordance with the relevant clauses of AS 2419.1:2005 - Fire hydrant installations System design, installation and commissioning.”

Figure 1: Extract of Subdivision Landscape Plan Drawing 101 Rev B prepared by New Eden Design dated 13 Jun 2023, depicting original subdivision layout no longer the subject of these proceedings

3. The amended subdivision layout design, the subject of these proceedings, was referred to the RFS on 7 November 2024. The RFS provided a response on 5 December 2024, a copy of which is provided to the Court, which raised a concern with the removal of the “perimeter road” in contravention of section 3.4.1 of Planning for Bushfire Protection 2019 (PBP 2019);

4. On 20 December 2024, the Respondent sent correspondence to RFS providing the Applicant's submission from BlackAsh Bushfire Consulting dated 13 December 2024 and Pikes and Verekers Lawyers dated 20 December 2024 justifying the removal of the originally proposed “perimeter road”. A copy of the Applicant's submission and letter have been provided to the Court.

5. On 11 February 2025, the RFS responded and advised that the provided justification for the lack of a perimeter was not deemed to meet the PBP 2019. A copy of the correspondence has been provided to the Court.

6. The RFS has raised a specific concern in relation to compliance with section 3.4.1 of the PBP 2019 which states:

“A perimeter road should be provided to separate bushland from urban areas, allowing more efficient use of firefighting resources. A perimeter road is located on the outer extremity of a local area or subdivision and usually runs parallel to the bush land interface.

The perimeter road provides space to conduct active firefighting operations and hazard reduction activities. In developments where no perimeter road exists, property defence in a bush fire event may be more difficult.” (Emphasis added.)

29. Section 3.4 of the PBP 2019 provides that “Chapters 5-8 detail performance criteria and acceptable solutions for access arrangements, relevant to the development type”. The relevant performance criteria for access for residential and rural residential subdivisions is outlined in Table 5.3b of the PBP 2019 which list six performance criteria. These are addressed below at [35].

30. Section 8.14(4) of the EPA Act provides that the Court may determine an appeal that relates to integrated development whether or not the consent authority has obtained general terms of approval from the relevant approval agency. Preston CJ states at [15] to [18] of Shoalhaven City Council v Easter Developments Pty Limited (2024) 261 LGERA 35; [2024] NSWLEC 49:

“[15]…the assessment of the extent to which the proposed development conforms with or deviates from the PBP (the matter in cl 45(2)(h) of the Rural Fires Regulation) needs to be undertaken by the consent authority and, on the appeal in this case, by the Commissioner in determining the development application to carry out the proposed integrated development. The matter was a relevant matter for the Commissioner to consider in determining the development application.

[16] That obligation is reinforced by s 39(4) of the Court Act. This provides:

“In making a decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act the circumstances of the case and the public interest”.

[17] Clause 45(2)(h) of the Rural Fires Regulation falls within the scope of these matters that s 39(4) of the Court Act required the Commissioner to consider in making her decision on the appeal in this case.

[18] The Commissioner also was required to consider the impact of bush fire attack on the people and assets on the land and the bush fire protection measures to mitigate that impact under s 4.15(1)(c) of the EPA Act. The Commissioner, exercising the functions of the consent authority on appeal, was obliged, in determining the development application, to take into consideration “the suitability of the site for the development.” The suitability of the land for the proposed development of a residential subdivision was dependent on the provision of an APZ that complied with the APZ requirements of the PBP. Hence, the Commissioner needed to assess the extent to which the proposed development conformed with or deviated from the PBP.”

31. The Applicant relies on, and the Respondent has reviewed, the following documents to assist with the assessment of the extent that the Proposed Development conforms with or deviates from the PBP 2019:

32. Bushfire Hazard Assessment prepared by BlackAsh Bushfire Consulting dated 9 July 2024 filed on 3 February 2025 (Bushfire Assessment)

33. Letter to RFS prepared by BlackAsh Bushfire Consulting and dated 13 December 2024 a copy of which has been provided to the Court (BlackAsh letter).

34. The parties are satisfied in relation to the extent to which the Proposed Development conforms with and deviates from the PBP and the impact of bushfire attack on the people and assets on the land and the bushfire protection measure to mitigate that impact for the following reasons.

35. Firstly, the BlackAsh letter sets out that while a perimeter road is not proposed by the Proposed Development, a number of design features provide equivalent functionality including that:

36. the perimeter of the bushland is accessible via existing roads;

37. the driveway to proposed Lot 8 which provides direct access to the bushland for firefighting; and

38. the interface is narrow and therefore the entire bushland interface can be reached, and the bushland is considered low risk.

39. The BlackAsh letter concludes that the Proposed Development:

“achieves the objectives of the PBP 2019 while balancing practical constraints and safety outcomes. By incorporating robust bushfire protection measures, the absence of a perimeter road in this low risk context does not diminish the overall firefighting effectiveness or safety for residents and emergency responders. The intent of the measures outlined in PBP 2019 for access, as described in Section 5.3.2, is to ensure safe operational access to structure and water supplies for emergency services while residents are seeking to evacuate from an area. This application clearly demonstrates compliance with these requirements.”

35. The BlackAsh letter specifically assesses the Amended DA against the Performance Criteria in Table 5.3b of the PBP 2019 in Attachment 1 to the letter, which is summarised below:

36. Firefighting vehicles are provided with safe, all-weather access to structures:

(a) Firefighting vehicles have safe and unrestricted access to all structures within the proposed development via Caddens Road and Heaton Avenue.

2. The capacity of access roads is adequate for firefighting vehicles:

(a) Caddens Road and Heaton Avenue have sufficient capacity to accommodate firefighting vehicles ensuring accessibility for emergency operations.

3. There is appropriate access to water:

(a) Caddens Road and Heaten Avenue provide convenient and reliable access to the reticulated water supply and strategically placed hydrants along both roads, ensuring essential firefighting resources are readily available.

4. Access roads are designed to allow safe access and egress for firefighting while residents are evacuating as well as providing a safe operational environment for emergency service personnel during firefighting and emergency management on the interface:

(a) Both Caddens Road and Heaton Avenue allow safe access and egress for firefighting vehicles while residents are evacuating. Of the proposed eight dwellings, six will gain access directly to Caddens Road and therefore evacuate away from the bushfire hazard. The remaining two dwellings will evacuate to Heaton Avenue and through the existing road network. (b) Caddens Road, Heaton Avenue and Panorea Street provide a safe operational environment for emergency service personnel during firefighting and emergency management on the interface. Given the narrow area of the interface (125 metres), firefighting can occur from the existing road network or from within the proposed subdivision

36. I reproduce below at Figure 2 the “Hose Lay Coverage” from the BlackAsh letter which depicts the proposed subdivision layout:

Figure 2: “Hose Lay Coverage” from the BlackAsh letter

37. As I referred to above at [16], I reproduce below at Figure 3 an extract of the Subdivision Landscape Plan prepared by New Eden Design Drawing 101 Rev D dated 29 July 2024 which shows more clearly the proposed subdivision layout including indicative future dwelling locations and the Asset Protection Zone (APZ). The access driveways for proposed Lots 7 and 8 from Heaton Avenue are also shown.

Figure 3: Extract of Subdivision Landscape Plan prepared by New Eden Design Drawing 101 Rev D dated 29 July 2024.

38. I accept that it is agreed between the parties, as written in a letter from the Applicant’s solicitors dated 20 December 2024 to the Respondent, as follows:

“We note that Council has contended that the perimeter road, as originally proposed, would result in unacceptable impacts upon critically endangered ecological communities (CEEC). Due to the levels on site, significant fill and earthworks and retaining structures would be required to establish a perimeter road.

Given the demonstrated ability to reach the full interface, the fact that only three lots interface with the bushfire hazard, and the need to mitigate impacts upon the CEEC, we are of the view that the performance-based solution is a reasonable balance of the relevant considerations. To insist on a perimeter road would effectively sterilise the land from development which would be contrary to the objects of the Environmental Planning and Assessment Act 1979.”

39. On this basis, the parties are of the view, that consent can be granted without approval from the RFS pursuant to s 100B of the RF Act. I accept and adopt the reasons given by BlackAsh and the parties that there has been satisfactory assessment of compliance with or deviation from the PBP 2019 and I conclude that consent should be granted to the Proposed Development notwithstanding that the RFS has not issued GTAs pursuant to s 100B of the RF Act.

40. 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. I adopt the reasons given by the parties as set out in this judgment.

41. 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.

Notations

42. The Court notes that:

43. Penrith City Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendment to the Development Application DA22/0835 to rely on the following amended plans and documentation:

(a) Voluntary Planning Agreement (VPA) Offer prepared by DMPS Town Planning and Property Development Services, dated 10 April 2025.

Orders

43. The Court orders:

44. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,000 to be paid within 28 days of these orders.

45. The appeal is upheld.

46. Development Application DA22/0835 for the demolition of existing structures and consolidation of two lots to facilitate a nine-lot Torrens Title subdivision and associated works at 262-268 and 270-274 Caddens Road, Claremont Meadows being Lot 4 DP 27107 and Lot 51 DP 1166569 is determined by the grant of consent and subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (345440, pdf)

Annexure A1 (272630, pdf)