On 2 March 2023, Commissioner Horton handed down the decision in the matter of Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094.
Commissioner Horton accepted that consent for a development application for subdivision that incorporates a proposal to dedicate roads under section 9 of the Roads Act 1993 (Roads Act) can be granted, in the absence of a voluntary planning agreement or a condition provided under section 7.11 of the Environmental Planning and Assessment Act 1979 (EPA Act).
Section 9 of the Roads Act provides that:
9 Public road created by registration of plan
(2) On registration of the plan, the land is dedicated as a public road.
In instances where land is assigned for use as a public road, ownership of the road is transferred to the council governing the local government area where the road is situated, subject to certain exceptions.
Background
On 1 April 2020, Urban Apartments Pty Ltd (Applicant) lodged development application No DA 20/0167 with Penrith City Council (Respondent) proposing a mix use development at 614-632 High Street, Penrith (Site) (collectively, the DA). The DA had been subject to various amendments.
Among other things, the development subject of the DA proposed community infrastructure in the form of dedication of land as a road adjacent to the western boundary of the Site and the creation of a right of public access, and an easement for passive recreation over land to the east of the Site.
The DA aimed to utilise specific provisions outlined in the Penrith Local Environmental Plan 2010 (Penrith LEP), which stipulate that the provision of community infrastructure permits additional height and floor space ratio (FSR) for a development.
The Planning Panel resolved to refuse the DA on 17 May 2021, and a Notice of Determination was issued to the Applicant by the Respondent to this effect on 4 June 2021.
The Applicant brought an appeal pursuant to section 8.7 of the EPA Act.
Community infrastructure, as defined in the Penrith LEP, encompasses public roads. The Respondent’s Community Infrastructure Policy considers Voluntary Planning Agreements (VPAs) as a means of providing community infrastructure and outlines the Respondent’s preferred forms of such infrastructure.
In light of the above, Commissioner Horton was required to assess whether the development did, in fact, deliver the requisite community infrastructure.
Judgment
Commissioner Horton drew a distinction between the present case and that of Justice Duggan in the case of L & G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 149 (L&G Management). In L&G Management, Justice Duggan held that the exclusive authority to impose a consent condition regarding land dedication lies with either sections 7.11 or 7.4 of the EPA Act.
In this matter, Commissioner Horton posited that in L&G Management, the applicant sought to reserve land for the purpose of future road widening, and as such, section 9 of the Roads Act was deemed inapplicable.
Commissioner Horton evaluated that this approach can be differentiated from the situation examined by Justice Duggan in L&G Management, given that no condition of consent is necessary for effectuating the dedication.
In reaching a decision, Commissioner Horton found that the development facilitated the dedication of public roads as community infrastructure.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
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Author: Maysaa Parrino, Matt Armota & Shikha Chand
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