Statewide Planning Pty Ltd v Penrith City Council [2017] NSWLEC 1133 | Case summary | Zoe

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Statewide Planning Pty Ltd v Penrith City Council

[2017] NSWLEC 1133

Land and Environment Court (NSW)|2016-12-19|Before: Mr P, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-12-19

Before

Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

COMMISSIONERS: The proceedings are an appeal against the refusal by Penrith City Council of development application DA/15/0207. As originally lodged the application sought approval for 152 residential lots and civil works including a drainage basin on land described as Lot 1 DP740520, Lot 1 DP221780 and Lot 2 DP218959, 25 Rance Road Werrington. (the site).
The appeal was subject to mandatory conciliation on 5 November 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 6 April 2016, pursuant to s 34(4) of the LEC Act.
Following the commencement of hearing of the matter on 25 July 2016, the matter was adjourned to allow further conferencing of experts and resultant changes to the subdivision design were made to the proposal. Leave was granted by the Court on 9 September 2016 for the applicant to rely on amended plans (Subdivision plans, Rev P2), planning, civil and stormwater technical reports as well as new modelling of the water flows.
The application that is before the Court has the following substantive features: 1. Subdivision to create a total of 83 lots, including; 1. 82 residential lots between 209.51 to 224.71m²; and 2. 1 residue lot for future medium density residential housing. 1. The construction and dedication of new local roads, drainage and utility services; 2. Driveway crossovers as shown on the plans; 3. A stormwater retention basin located in the north eastern corner of the site, within Lot 1; 4. Remediation of the site; and 5. Vegetation removal and replacement planting of new trees along all road frontages, within the development site and along the southern boundary of the site.

[2]

[5]

Planning framework

The site is zoned R4 High Density Residential under the provisions of Penrith Local Environmental Plan 2010 (LEP 2010). The proposed development seeks the subdivision of the site only but is in contemplation of the residential use of the site. The proposed development is permissible with consent in the R4 zone.
Clause 2.3(2) of LEP 2010 provides that the consent authority must have regard to the objectives for development in a zone when determining an application in respect of land in that zone. The objectives of the R4 zone are: (a) to provide a variety of housing types within a high density residential environment (b) to enable other land uses that provide facilities or services to meet the day to day needs of residents (c) to ensure that a high level of residential amenity is achieved and maintained (d) to encourage the provision of affordable housing (e) to ensure that development reflects the desired future character and dwelling densities of the area.
Pursuant to cl 2.6(1) of LEP 2010 land may be subdivided, but only with development consent. Clause 4.1, and the lot size map, does not prescribe a minimum lot size for this site. Clause 4.1A requires a minimum lots size of 800m² for residential flat development, which the experts have referred to in the evidence in relation to the residue parcel, Lot 1.
Penrith Development Control Plan 2014 (DCP 2014) applies. Part C of the DCP sets out the requirements that apply to all land uses; relevantly (k) provides controls for subdivision and (m) infrastructure and services. Key Precinct Controls are contained in Part E of DCP 2004. Within E12 Penrith Health and Education Precinct, cl 12.8 provides controls for the South Werrington Urban Village.
Relevant to the issues remaining in this appeal DCP 2014 contains the following performance measures for stormwater in the South Werrington Urban Village: a) an integrated approach to stormwater management is proposed that considers the capacity of the existing system and water sensitive urban design that is compatible with the topography and soil types; b) a range of measures are proposed to manage stormwater; c) the design of Stormwater Management Facilities is to include a schedule of long term maintenance and operational costs.
The South Werrington Urban Village Structure Plan is outlined in DCP 2014 at Figure E12.10.
Sydney Regional Environmental Plan 20- Hawkesbury Nepean River (No 2-1997) applies to the land although it was agreed that the proposal meets the requirements of this policy.

[7]

The council conditions in dispute

A number of versions of draft conditions were tendered during the hearing and after the hearing at the direction of the Court. These versions are:

Respondents Draft Conditions of Consent filed on 15 November 2016 (Exhibit 9).
Applicants Response to Draft Conditions of Consent (Exhibit F).
Applicants Final Response to Conditions - 20 December 2016.
Respondents Further Draft Without Prejudice Conditions of Consent - 21 December 2016.
Respondents Reply to Condition Amendments - 21 December 2016.

We have relied on the Applicants Final Response to Conditions - 20 December 2016 in the consideration of the conditions in dispute as these conditions represent the most recent version of the council's conditions. These conditions also contain the applicant's response to those conditions in dispute. To avoid repetition, we have grouped those conditions together that have a similar topic. The conditions below rely on the council condition numbers and not the tracked changed condition numbers of the applicant. Deferred commencement condition A
This condition states: A. Prior to the commencement of the consent the plans are to be amended and provided to Council as follows:- All civil and stormwater design drawings are to be amended to reflect the subdivision pattern in MP01 Rev E. lot grading of lots 2-15 (on MP01 Rev E) is to be amended to drain to Rance Road, including the relocated entry of East/West Road 1. the civil and stormwater plans are to be amended to ensure the lots fall to the street for proposed lots 30 - 83 in MP01 Rev E. the civil plans are required to be amended to address the low point (temporary road east/west 2) and revised catchment plan to address revisions in MP01 Rev E including the direction of stormwater from Lot 1 to the detention basin MP01 Rev E is to be amended to show that the north/south road 3 extends as per current civil plans (not as indicated on MP01 Rev E) The Landscape Typical Details Plan - Section A does not depict the extent of filling works proposed and the required retaining wall construction on the southern boundary. The section also indicates a footpath between the southern boundary and roadway which is also inaccurate. The landscape plans are to be amended and submitted to ensure consistency with the amended civil design drawings.
The amendments proposed in Deferred commencement condition A arose from the further joint conferencing of the experts during the proceedings, as set out in Exhibit 11. The council seeks the applicant to update the development application documentation prior to consenting to the application. In submissions, the Council argued that to do otherwise the Court would be "approving a set of plans which is inconsistent with the intended approved lot layout, amongst other things, and leaving the issue of the final approved plan to the private certifier". In addition the council argues that the inconsistency between documents that has arisen due to the iterative nature of the changes may lead to confusion in implementing the consent and in checking compliance.
The applicant seeks the proposed requirements in Deferred commencement condition A to be an operational condition. In submissions, the applicant argued that the imposition of deferred commencement consent would delay the commencement of the demolition and remediation works on the site, which are unrelated to the matters that are covered by the deferred commencement conditions.

[14]

Condition 10

This condition states: 10. Site remediation works shall be carried out in accordance with the 'Remedial Action Plan (Building K and Drain Sediments), Sydney Water Corporation, Werrington Depot Rance Rd Werrington NSW' prepared by Parsons Brinckerhoff Australia Pty Limited dated May 2008 (Ref. 2115212A PL_6585_RevF) as well as Penrith Development Control Plan, the National Environmental Protection (Assessment of Site Contamination) Measure (2013) and applicable NSW Environment Protection Authority Guidelines. These works are to be carried out before subdivision works can commence on site, and written notification that the site remediation works have been completed is to be submitted within 30 days that the said works have been completed. During required site remediation works, the existing drainage system / network on-site is also to be assessed by the contamination expert for risk of potential asbestos or other contaminants. The 'Remedial Action Plan' is to be amended prior to issue of the Construction Certificate to detail an appropriate response protocol that complies with EPA and Workcover guidelines. The Remedial Action Plan is to be updated to reflect where asbestos or other contamination is identified. The Remedial Action Plan is to be updated to reflect new discoveries of asbestos or other contaminants, with revised copies of the Plan to be immediately provided to Council. The required remediation works are to be overseen by a suitably qualified consultant who shall: 1. Supervise the remediation works. 2. Supply Council with a copy of any relevant documentation for further testing carried out during the remediation works. 3. Address off site impacts and proposed management strategies were relevant. 4. (after completion of works) Certify by way of a Compliance Certificate or other written documentation that remediation works have been carried out in accordance with all conditions of this consent and that the site will not pose and unacceptable risk to human health or the environment (this information can be included in the Validation Report). A copy of the Compliance Certificate or other written documentation is to be submitted to the Principal Certifying Authority (PCA) and Penrith City Council if it is not the PCA. The contact details of any appropriately qualified person/s engaged for the works shall be provided by the PCA with the Notice of Commencement.
The site of the proposed development was previously a Sydney Water depot. As part of the applicants proposal, the site will be remediated in accordance with the Remedial Action Plan (Building K and Drain Sediments), Sydney Water Corporation, Werrington Depot Rance Rd Werrington NSW' prepared by Parsons Brinckerhoff Australia Pty Limited dated May 2008 (Ref. 2115212A PL_6585_RevF) as well as Penrith Development Control Plan, the National Environmental Protection (Assessment of Site Contamination) Measure (2013) and applicable NSW Environment Protection Authority Guidelines. This is required by condition 10.
In dispute between the parties is the management of asbestos and other contaminants. Council seeks the above condition: The applicant seeks for this section to be replaced with: If asbestos or contaminants are discovered then the protocols provided on pages 25 and 26 of the approved RAP are to be complied with
The applicant argues that an amendment of the Remedial Action Plan (RAP) would require a s96 amendment and that the RAP and guidelines produced by the NSW Environmental Protection Authority provide adequate management of the issues.

[16]

Conditions 23, 24, 25, 26, 27, 28, 29, 31 and 52A.

These conditions state: 23. The north western stormwater on site detention basin is to be utilised for sedimentation and erosion control during the construction phase of building works for| 52dwellings on the residential lots (Lots 16-83) approved by the development consent ; a). the north western stormwater on site detention basin is to be utilised for sedimentation and erosion control, and b) the owner of Lot 1 is to maintain and repair that basin and all works associated with it, in good working order. 24 Within one month of the construction of 52 dwellings on the residential lots (Lots 216-83), and prior to release of the bond referred to in condition 57; a) The sediment basin is to be decommissioned and the water sensitive urban design / bio filtration works component of the basin must be completed b) The WSUD assets / measures are to be constructed and operate in accordance with the approved design specifications / parameters and any other specific design previously entered into with Council c) The performance of the WSUD measure(s) must have been validated, which must include the provision of a Performance Validation Report supporting the performance of the WSUD measure d) Where applicable, the build-up of sediment must have resulted in no more than a 10% reduction of operational volume e) Asset inspections for defects must have been completed and, if any defects are found, rectified to the satisfaction of Council f) The WSUD infrastructure is to have been provided to the satisfaction of Council, structurally and geotechnically sound (this will require the submission of documents demonstrating that such infrastructure has been certified by suitably qualified persons) g) Design drawings have been supplied in a format acceptable to Council h) Works as Executed (WAE) drawings are to have been supplied for all infrastructure in a format and level of accuracy acceptable to Council i) Other relevant digital files are to have been provided (e g design drawings, surveys, bathymetry, models etc) j) Landscape designs are to have been supplied, particularly those detailing the distribution of functional vegetation, i e vegetation that plays a role in water quality improvement (clearance certificates from the landscape architect will need to be supplied) 25. 6 months following the completion of water sensitive urban design / bio filtration works, and before any development consent is granted for any development on Lot 1 (the large remainder lot approved in this consent), the north western stormwater on site detention basin must be dedicated to Council. 26. Until the time that the north western stormwater on site detention basin is dedicated to Council the owner of Lot 1 must maintain and repair the north western stormwater on site detention basin. 27. Prior to the issue of Construction Certificate for the subdivision works a s88E Conveyancing Act public positive covenant is to be lodged on title requiring the owner to a) Permit use of the north western stormwater-on site detention basin for sedimentation and erosion-control during the construction phase of building works for dwellings on the residential lots (Lots 2 83) approved by this development consent b) Within one month of the construction of 65 dwellings on the residential lots (Lots 2-83) the sediment basin is to be decommissioned and the water sensitive urban design / bio filtration works component of the basin must be completed c) maintain and repair the north western stormwater on site detention basin and all works associated with it, in good working order, until it is dedicated to Council. d) a maintain the landscaping in and around the bioretention basin, including by weeding, replacing dead plants and keeping the landscaping in good order until it is dedicated to Council 28. With-the issue of the Subdivision Certificate for the subdivision works a s 88E Conveyancing Act public positive covenant is to be lodged on title of Lot 1 requiring the owner to-Permit the use of the north western stormwater on site detention basin for sedimentation and erosion control during the construction phase of building works for dwellings on the residential lots (Lots 2-83) approved by this development consent a) Within one month of the construction of 65 dwellings on the residential lots (Lots 2-83) the sediment boom is to be decommissioned and the water sensitive urban design / bio filtration works component of the basin must be completed b) maintain and repair the north western stormwater on site detention basin and all works associated with it, in good working order, until it is dedicated to Council c) maintain the landscaping in and around the bioretention basin, including by weeding, replacing dead plants and keeping the landscaping in good order until it is dedicated to Council. 29. Prior to the dedication of the north western stormwater on site detention basin the following conditions must be met to Council's satisfaction The WSUD assets / measures are constructed and operate in accordance with the approved design specifications / parameters and any other specific design agreements previously entered into with Council The performance of the WSUD measure(s) has boon validated, which must include the provision of a Performance Validation Report supporting the performance of the WSUD measure Where applicable, the build up of sediment has resulted in no more than a 10% reduction of operational volume Asset inspections for defects has been completed and, if any defects arc found, rectified to the satisfaction of Council The WSUD infrastructure is to the satisfaction of Council, structurally and geotechnically sound (this will require the submission of documents demonstrating that such infrastructure has been certified by suitably qualified persons) Design drawings have been supplied in a format acceptable to Council Works as Executed (WAE) drawings have boon supplied for all infrastructure in a format and level of accuracy acceptable to Council Other relevant digital files have boon provided (c g design drawings, surveys, bathymetry, models etc) Landscape designs have boon supplied, particularly those detailing the distribution of functional vegetation, i c vegetation that plays a role in water quality improvement (clearance certificates from the landscape architect will need to be supplied) -The condition of the infrastructure and associated with the land complies with the approved design specification Filter media infiltration rates are within 10% of the rates of the design parameters for the filtration system concerned) Comprehensive operation and maintenance manuals (including indicative costs) have been provided The plan should include details on the following i. Site description (area, imperviousness, land use, annual rainfall ii. Site access description iii. Likely pollutant types, sources and estimated loads iv. Locations, types and descriptions of measures proposed v. Operation and maintenance responsibility vi. Inspection methods (including inspection checklists) vii. Maintenance methods (frequency, equipment and personnel requirements), viii. Landscape and weed control requirements ix. Operation and maintenance costs, x. Waste management and disposal options, and xi. Reporting 31. The detention basin approved as part of this consent must be constructed as a permanent basin - a) dedicated to Council at no cost prior to the issue of any development consent for Lot 1 or any subdivision consent for Lot 1 unless the drainage system the subject of this development consent is connected to the Regional Basin to the north west of this site. It is noted that details of such connection are not approved in this development consent, and may require further development consent 52A The s 88B instrument for the subdivision is to include the grant of an easement in gross under section 88A of the Conveyancing Act 1919 which a) permits the use by Council of the north western stormwater on site detention basin for drainage, sedimentation and erosion control, and rights of access sufficient to maintain the basin b) provides for termination and release of the easement at such time as the stormwater basin described in Council's Precinct Strategy 2004 has been constructed and become operational on Lot 1 DP 1226122 (the adjacent property adjoining to the immediate west), c) prevent alteration to the basin until release of the easement.
These conditions raise a fundamental difference between the parties; being the location and ongoing maintenance of the temporary on- site detention basin to deal with stormwater from the proposed development given the absence of the planned regional stormwater detention basin. The conditions raise the following questions:

[17]

Is the detention basin is satisfactorily aligned with the Structure Plan?

Mr Cherry's evidence is that the final subdivision design proposes to manage and direct stormwater on the site in a manner that is contrary to DCP 2014, and the supporting Stormwater Management Strategy for the precinct.
The boundaries of the precinct are shown in the following extract from Figure E12.9 of DCP 2014.
The structure planning for the precinct is shown in the following extract from Figure E12.10 of DCP 2014.
It is Mr Cherry's evidence that DCP 2014 requires the precinct as a whole to provide stormwater detention capabilities in the north western corner and the south western corner of the residential medium density areas. These areas encompass the subject site. Supporting DCP 2014 is the South Werrington Sub Precinct Master plan Servicing and Stormwater Management Strategy (the Servicing Strategy).
The existing drainage on the site is divided between the northern and southern catchment, which is altered in the proposed subdivision with a greater proportion of the lots draining to a new basin in the north western corner of the site, and no basin provided to the southern portion of the site. The evidence of Mr Cremona is that the applicant has not provided a coordinated solution to drainage and stormwater with respect of the site in terms of water quantity and insufficient information has been provided to demonstrate how the temporary basin can be connected to the adjoining regional basin, and integrated into the servicing strategy.
The council in submissions argued that the redirection of the majority of site water to the north western corner, the construction of the temporary basin, and the earth works required to regrade the land accordingly will affect the implementation of councils servicing strategy, and may result in the need for an increase in capacity in the regional basin.
If the subdivision is supported by the Court, council seeks that the basin proposed is recognised as a permanent part of the stormwater infrastructure for the precinct and is transferred to Council.
Mr Jamison's evidence is essentially that the application proposes a temporary basin that is proposed to be retained up until the downstream regional basin (included in the servicing strategy) is handed over to council. At this point the basin on the site will be removed and the drainage system connected to the regional basin. He states: Whether the regional basin is constructed prior to this development or after it, the design and construction of the regional basin will need to cater for any points of connection, including this proposal. The temporary basin will be removed once the regional basin has been handed over to Council… the modelling shows there will be little to no change in the required basin volume to that currently proposed in the approved drainage report provided in support of the adjoining development.
The experts agree that once the issues in relation to the regional stormwater basin are resolved, the water quality items can be addressed by appropriate conditions.
The experts agree that whilst the Servicing Strategy is ….not explicit in discussing temporary basins it does not discourage them. As long as the temporary basin operates in accordance with the strategy there is no reason why they should not be permitted from a stormwater management perspective provided that ultimate drainage details, mechanisms and agreements are established (Exhibit D).
In submissions, the applicant confirmed that they seek approval for a temporary basin that is to be decommissioned if and when a regional basin is constructed in accordance with council's Servicing Strategy. In addressing councils concerns the applicant has confirmed: 1. the basin included in the current plans (Exhibit G) is designed to function as a permanent basin, but includes all facilities to be installed at the time of construction of the subdivision to allow it to be bypassed at a later time, if or when council constructs the regional basin; 2. it consents to the imposition of an 88E positive covenant that requires the ongoing maintenance of the basin by the owner of the residue lot; 3. If the council proceeds to construct a basin on the adjoining land, all facilities necessary for the connection of the drainage system to that adjoining basin, by-passing the basin on the subject site, will be in place under the public road system, so as to be in public ownership.

[19]

How permanent is the basin and should it be transferred to Council?

Council submits that the proposed basin should be considered a permanent part of the precinct stormwater infrastructure for the precinct and be transferred to council. Prior to the commencement of the proceedings Councils required: 1. The transfer of the basin to Council, at no cost after three years; and 2. The creation of an easement over the neighbouring land from the proposed basin to the regional stormwater facility.
These conditions of development consent are sought by the council on the basis that the delineation of the basin as 'temporary' has little meaning and it would be difficulty to determine a trigger for the connection to the regional stormwater facility in the future. Mr Cremona's evidence is that ongoing maintenance is imperative for the basin to function as it is designed to ensure the integrity of the downstream drainage network. Therefore to provide certainty, an agreement should be reached with the owner of the land on which the regional basin is proposed for an easement to drain water, or the basin dedicated to Council.
The applicant seeks to retain the ownership of the land on which the basin is located to allow for the potential of redevelopment of the land as part of the residue lot (Lot 1), if and when the regional stormwater facility is constructed on the adjacent land. In relation to the issue of the easement the applicant argues that the drainage of the proposed subdivision ultimately drains to the public road system in council's ownership and if the regional stormwater facility is constructed, an easement to drain this water to the council's facility will not be required. Or, in the alternate, the regional stormwater facility is not required; the subdivision will permanently function with the basin as constructed.
The applicant opposes dedication of the basin to council as it says that acquisition of such a facility is not authorised by the relevant Development Contribution Plan and would be against the orderly and economic use of the land as the basin will only be required until such time as the regional stormwater facility is constructed. Once the basin on Lot 1 is redundant the applicant argues the land should be available to the developer for the residential development. It also opposes the 88E instrument proposed by condition 27 as it argues that council has adequate compliance powers under s121B and 123 of the Environmental planning and Assessment Act 1979 (the EPA Act) to ensure the conditions of consent are complied with.
The applicant proposes that at completion of the stormwater works the cost of management and maintenance of the basin serving the development be transferred to council. This is opposed by council.
In response to the applicants submissions the council has proposed the following conditions: Maintenance and ownership of stormwater basin 26. Until the time that the north western stormwater on site detention basin is dedicated to Council the owner of Lot 1 must maintain and repair the north western stormwater on site detention basin. 27. With the issue of the Subdivision Certificate for the subdivision works a s88E Conveyancing Act public positive covenant is to be lodged on title of Lot 1 requiring the owner to comply with the following requirements: Permit the use of the north western stormwater basin for sedimentation and erosion control during the construction phase of building works for dwellings on the residential lots (Lots 2-83) approved by this development consent. Within one month of the construction of 52 dwellings on the residential lots (Lots 16-83) the sediment basin is to be decommissioned and the water sensitive urban design / bio filtration works component of the basin must be completed. maintain and repair the north western stormwater basin and all works associated with it, including gross pollutant trap and water sensitive urban design measures in good working order, in accordance with the operation and maintenance manuals approved in this consent in perpetuity. maintain the landscaping in and around the bio retention basin, including by weeding, replacing dead plants and keeping the landscaping in good order in perpetuity. 29. The proponent is responsible for the construction of the basin and installation of proposed Gross Pollutant Trap(s). The construction is to be done in a way which reflects the concept design and calculations outlined in the revised Stormwater Drainage Strategy and Water Sensitive Urban Design Strategy. 31. The detention basin approved as part of this consent must be: constructed as a permanent basin dedicated to Council at no cost prior to the issue of any development consent for Lot 1 or any subdivision consent for Lot 1 unless the drainage system the subject of this development consent is connected to the Regional Basin to the north west of this site. It is noted that details of such connection are not approved in this development consent, and may require further development consent. 58 Prior to the issue of any Subdivision Certificate, and to Council's satisfaction, the following easements / positive covenants shall be created on the plan of subdivision (with supporting 88B Instrument):- a) Easements for drainage to the detention basin providing Council and any lots with the legal right to drain into the detention basin. b) Easement benefitting Council for access to the detention basin, for emergency repairs. c) Any other easements identified during the construction process ...
Council has deleted the condition requiring dedication of the basin on Lot 1 on the basis that the following outcomes are required: 1. A public positive covenant is required to be registered on title, 2. The applicant does not oppose providing a works completion bond, 3. An easement for access (for emergency maintenance) to councils benefit is registered on title, and 4. The basin is maintained by the owner of lot 1.
The parties agree that the within one month of the construction of 52 dwellings (lots 16-83) the water sensitive urban design/ bio filtration works are to be completed. The applicant wishes the 'Outstanding Works Bond' envisaged by proposed condition 55 to be released at this time. The council opposes this release on the basis that the bond should be released when all works for the construction, landscaping and implementation of the stormwater basin are completed.

[21]

Condition 32

This condition states: 32. Prior to the issue of any Construction Certificate, the Certifying Authority shall ensure that a Section 138 Roads Act application, including payment of application and inspection fees, has been lodged with, and approved by Penrith City Council (being the Roads Authority under the Roads Act), for provision of road and drainage works noted below. a).Construction of a conventional roundabout for B-double and articulated vehicles at the intersection of Rance Road and Werrington Road. The works shall include the following: i.Stage 3 Road Safety Audit ii. Relocation of any services iii. Landscape works iv. Appropriate access shall be provided for all properties that gain vehicular access at this intersection v. Rance Road realignment and extinguishing redundant road pavement vii. Pedestrian facilities and linkages b) The following works in Rance Road and Walker Street are also required:- i. Drainage works in Rance Road (where required). ii. Drainage works in Walker Street for the connection of the north western stormwater basin iii. Internal road connection to Rance Road. iv. Relocation of the pedestrian refuge island (location shall be determined in consultation with Council's Local Traffic Committee) and connecting 1.5 metre wide footpath along the eastern side of Rance Road from Walker Street and south to the existing footpath. v. Relocation of kerb inlet pits in Rance Road that conflict with approved driveway locations. vi. New kerb and gutter (including laybacks) in Walker Street and Rance Road. vii. 1.5 metre wide footpath for full property frontage in Walker Street and Rance Road Engineering plans are to be prepared in accordance with the development consent, Penrith City Council's Design Guidelines for Engineering Works for Subdivisions and Developments, Engineering Construction Specification for Civil Works, Austroads Guidelines, and best engineering practice. Contact Penrith City Council's Development Engineering Department on 4732 7777 or visit Penrith City Council's website for more information. Prior to the issue of any Subdivision Certificate the Principal Certifying Authority shall ensure that the works required by this condition are complete and seek Council's written confirmation that it is satisfied the works have been completed to Council's satisfaction
The council submits that the s138 Roads Act approval is required prior to Construction Certificate (CC) for any works that may impact on or relate to public roads; so that any conditions can be reflected in the CC, if relevant. The applicant opposes the approval being obtained prior to CC as there is no reason for requiring this and may prevent, for example, the required remediation works. The council however disputes that the condition, as proposed, would prevent works, such as the remediation works.
We accept the council's submissions on this condition as it is appropriate that the full obligations under the s138 Roads Act approval be reflected in the CC plans.

[23]

Condition 59

This condition states: 59. Prior to the issue of any Subdivision Certificate, and to Council's satisfaction, the following easements / positive covenants shall be created on the plan of subdivision (with supporting 88B Instrument):- a) Easements for drainage to the detention basin providing Council and any lots with the legal right to drain into the detention basin. a1) Any other easement identified during the construction process. b).Easement benefitting Council for access to the detention basin, for emergency repairs. c).Any other easements identified during the construction process d).Easement for vehicular access over the temporary road including 2 metre X 2 metre corner splays on adjacent corner lots e) Restrictions shall be placed on all new allotments that restricts the driveway width to a maximum of 3m in the locations indicated on the approved Master Plan Drawing No. MP01 Revisions E for all allotments excluding Lot 1 .Each lot must use the driveway as approved in the plans. f) Suitable easements for access and maintenance (minimum 1.0m wide) are to be provided on all allotments adjoining built to boundary construction capability. g). Positive covenant requiring that any development on all allotments demonstrate compliance with the construction requirements outlined within Clause 3.1, Table 4 of the Environmental Noise Impact Assessment Report, prepared by Acouras Consultants dated 11/02/2015. h) ….
We accept that the required easement for access to the basin for emergency as identified as subsec (a1) should be included.
The council submits that subsec (b) is to pick up any easements which become necessary through design details however the applicant maintains that it is open ended and unreasonable. We agree with the applicant in this case given the uncertainty of the condition and can be deleted.
The council submits that subsec (f) is imposed as a standard requirement in small lot subdivisions where there is building to the boundary. The intention is to provide clear rights between neighbours for future maintenance of property in the long term, and avoid neighbour disputes. The applicant maintains that it is unnecessary at this stage and more appropriate with the submission of a DA for a dwelling. We agree with the applicant and the condition can be deleted.

[24]

Condition 59(h), 67, 69(h) and 74

These conditions state: 59. Prior to the issue of any Subdivision Certificate, and to Council's satisfaction, the following easements / positive covenants shall be created on the plan of subdivision (with supporting 88B Instrument):- . . h) Restrictions on the use of the land as outlined within the NSW Rural Fire Service - Bushfire Safety Authority dated 27 June 2016. 67.The following report relating to landscaping is to be submitted to the nominated consent authority at the appropriate time period as listed below:- i. Implementation Certificate Upon completion of the landscape works associated with the development and prior to the issue of a Subdivision Certificate for the development, an Implementation Certificate must be submitted to the Principal Certifying Authority attesting to the satisfactory completion of the landscaping works for the development. The Certificate is to be prepared by a suitably qualified landscape consultant A Subdivision Certificate must not be issued until such time as a satisfactory Implementation Certificate has been received. If Penrith City Council is not the Principal Certifying Authority, a copy of the satisfactory Implementation Certificate is to be submitted to Council together with the Subdivision Certificate for the development. 69(h) Restrictions on the use of the land as outlined within the NSW Rural Fire Service - Bushfire Safety Authority dated 27 June 2016. 74. The development is required to comply with the requirements of the NSW Rural Fire Service outlined within the Bushfire Safety Authority dated 27 June 2016 as follows:- i) At the commencement of building works, and in perpetuity, the entire property shall be managed as an Inner Protection Area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. ii) A restriction to the land use pursuant to section 88B of the Conveyancing Act 1919 shall be placed on lots 69 and 70 prohibiting the development of a residential dwelling on the lots until such time that the land the south and south-west of the site has been developed such that the adjoining hazard has been permanently removed. This restriction can be lifted once this has occurred. iii) The restriction on development of Lot 69 and 70 has been imposed as 10 metre asset protection zones are required to be provided to all developable lots in the proposed subdivision in accordance with 'Planning for Bush Fire Protection iv) The provision of water, electricity and gas shall comply with section 4.1.3 of 'Planning for Bush Fire Protection 2006'. iv) Public road access shall comply with section 4.1.3 (1) of 'Planning for Bush Fire Protection 2006'.
The council's conditions include the general terms of approval provided by the Rural Fire Service (RFS), as the development is integrated development within the meaning of s91(a) of the Act. The applicant seeks to amend these conditions.
Section 91A(3) of the EPA Act, states, in part: …consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.
As part of the proceedings the applicant tendered an expert report from Mr Swain (Exhibit H) addressing the Bushfire Attack Levels (BAL) adopted by the RFS for the affected lots in their approval. He concludes that the on the basis of the amendments to the subdivision which increase the setback from the adjoining grassland, from the setback in the plans on which the RFS approval was provided, the BAL nominated for the dwellings (lots 4-45 and 145-160) can be reduced. The applicant states that it expects to obtain RFS approval to restrictions in accordance with Mr Swain's letter. The report from Mr Swain is based on an earlier subdivision plan that identifies lots (numbered 4-45) in the location of the proposed residue Parcel, Lot 1. In addition the plan does not reflect the relocation or the change in the landform of the site. As such the evidence from Mr Swain is not directly applicable to the current application.
However subject to an updated approval from RFS reflecting the new subdivision, and new general terms of approval being provided prior to the final orders in the proceedings, this amendment could be effected.
It is submitted that council's conditions are consistent with the RFS general terms of approval. If necessary, the conditions can be amended by s96 application, if the RFS approval issued is different to the General Terms of Approval included in the conditions of consent. This is the appropriate course of action for integrated development. The draft consent conditions include the general terms of approval provided by the Rural Fire Service (RFS), as the development is integrated development within the meaning of s91(a) of the Act. The applicant seeks to amend these conditions.
However subject to an updated approval from RFS reflecting the new subdivision, and new general terms of approval being provided prior to the final orders in the proceedings, this amendment could be effected. Condition 73(b)
This condition states: (b) Alternatively to (a), in the event that a Voluntary Planning Agreement, that is based on the Applicant's letter of offer 18 December 2016, is entered into that provides for delivery of infrastructure identified in the abovementioned plans, the arrangement allowed in this condition will cease to apply to this consent
No Voluntary Planning Agreement (VPA) has been contemplated during the lengthy course of the proceedings. On 19 December Council received an offer to enter into a VPA, but this offer has not been assessed or considered, nor has a VPA been drafted, exhibited, adopted etc. Typically, where a VPA is entered into, the conditions of consent require compliance with the VPA and registration of the VPA on title, amongst other things. The proposed condition wording is in any case inadequate. If a VPA is entered into the condition may be amended in an appropriate way, any such proposed amended condition would be advertised with the draft VPA.
The Court does not have a VPA or an offer from the applicant that satisfies the provisions of the Act, and the associated provisions of the Environmental Planning and Assessment Regulation 2000. As a result we cannot be satisfied, pursuant to s80A(1) of the Act, that it is appropriate to impose the condition sought by the applicant.

[25]

Section 97B Costs

Given the substantive changes to the proposal that have occurred during the proceedings the respondent has asked the Court to consider whether an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application of is applicable (s97B of the Act).
Section 97B of the EPA Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
Prior to the commencement of the hearing, the applicant sought and was granted leave to rely on amended plans (Exhibit B) subject to an order for costs under s 97B of the Act. The council experts have undertaken significant assessment of these plans before the Court proceedings commenced. During the proceedings further amendments were made, making a proportion of this assessment and evidence redundant. The applicant argues that the amendments result in the cost of this assessment being "thrown away".
In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'.
The decision Pepper, J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 [42] articulates the principles that may assist in determining whether amendments are minor, as follows: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
Since the Court provided leave to the applicant for amended plans, substantive design changes that have been made to the subdivision plan in order to deal with issues raised the council. These include the following: 1. The consolidation of all residue lots as sought by council in the joint planning report; 2. Relocation of east west road 1 further to the south; 3. Amendment in cut and fill and finished levels for lots fronting Range Road, and at the boundary interface with the adjoining property to the south and west of the site; 4. Subsequent reduction in retaining wall heights; 5. Revised civil engineering drawings to respond to councils draft conditions of consent; 6. Revised Stormwater Management Strategy to respond to councils draft conditions of consent; and 7. Revised Landscape plan to respond to councils draft conditions of consent.
These changes are cumulatively significant when compared to plans provided leave by the Court in September 2016, and on which the expert evidence was prepared. For these reasons, we are satisfied that the amendments made to the proposal are not minor for the purposes of s 97B of the EPA Act.