2 6 First Ave Blacktown Pty Ltd ATF 2 6 First Ave Blacktown Unit Trust v Blacktown City Council - [2023] NSWLEC 1221

Land and Environment Court

New South Wales

Medium Neutral Citation: 2 - 6 First Ave Blacktown Pty Ltd ATF 2 - 6 First Ave Blacktown Unit Trust v Blacktown City Council [2023] NSWLEC 1221
Hearing dates: Conciliation conference held on 28 April 2023
Date of orders: 10 May 2023
Decision date: 10 May 2023
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) Leave is granted to rely on the amended documentation listed in Exhibit CM-2 to the affidavit of Catherine Marginson filed 21 April 2023 and in the conditions at Annexure ‘A’.
(2) The Applicant is to pay the Respondent’s costs thrown away, as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.
(3) The appeal is upheld.
(4) Development Application No. SPP-21-00010 for construction of a 25-storey mixed-use development comprising ground level retail, commercial premises on Level 1 and residential apartments above including rooftop areas and 5 levels of basement car parking on Lot 2 Deposited Plan 1214977, also known as 2 - 6 First Avenue, Blacktown is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:
DEVELOPMENT APPLICATION – shop top housing with retail and commercial development – design quality – height development standard non-compliance – cl 4.6 written variation request – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:
Blacktown Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6, 7.5, 7.7, 7.12
Environmental Planning and Assessment Act 1979, ss 2.15, 4.15, 4.16, 4.417, 8.7, 8.15, 9.1
Environmental Planning and Assessment Regulation 2000, cll 49, 55
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Planning Systems) 2021, Sch 6, s 2
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100, 2.122
State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cl 4

Texts Cited:
Blacktown Development Control Plan 2015
NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category: Principal judgment
Parties: 2 - 6 First Ave Blacktown Pty Ltd ATF 2 - 6 First Ave Blacktown Unit Trust (Applicant)
Blacktown City Council (Respondent)
Representation:
Counsel:
T To (Applicant)
K Lindeman (Respondent)
Solicitors:
Mills Oakley (Applicant)
Clayton Utz (Respondent)

File Number(s): 2022/160160
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the deemed refusal of Development Application SPP-21-00010 (the DA) by Blacktown City Council (the Council), which seeks construction of a 25-storey shop top housing development comprising commercial and retail premises, and residential apartments with basement parking, landscaping and associated civil works on Lot 2 Deposited Plan 1214977, also known as 2 - 6 First Avenue, Blacktown (the site).

Background

The DA was lodged with Council on 2 August 2021. The original DA was notified to residents, with two submissions received. The key issues raised by residents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2 6 First Ave Blacktown Pty Ltd ATF 2 6 First Ave Blacktown Unit Trust v Blacktown City Council [2023] NSWLEC 1221
Case: [2023] NSWLEC 1221
Decision Date: 10 May 2023

CaseChat Overview and Summary

This case involved a dispute between 2 6 First Ave Blacktown Pty Ltd ATF 2 6 First Ave Blacktown Unit Trust, the applicant, and Blacktown City Council, the respondent. The applicant sought consent for the construction of a 25-storey mixed-use development at 2 - 6 First Avenue, Blacktown. The primary issue before the court was whether the applicant could rely on amended documentation that had been filed after the hearing of the original application. The respondent argued that the applicant should not be permitted to rely on the amendments as it would cause an injustice.

The court considered the nature of the amendments and the circumstances under which they were made. It was noted that the amendments related to minor changes in the proposed design and did not alter the fundamental character of the proposed development. The court concluded that allowing the applicant to rely on the amended documentation would not cause any injustice to the respondent and would not undermine the integrity of the consent process. The court further held that the respondent's costs, incurred due to the amendments, should be borne by the applicant.

The appeal was upheld, and the development application was granted subject to certain conditions. The court's decision allowed the applicant to proceed with the development, subject to the conditions outlined in the judgment. The court ordered that the applicant pay the respondent’s costs, as a result of the amendments made, in accordance with the Environmental Planning and Assessment Act 1979.

Orders

Orders of the court

The Court orders:

(1) Leave is granted to rely on the amended documentation listed in Exhibit CM-2 to the affidavit of Catherine Marginson filed 21 April 2023 and in the conditions at Annexure ‘A’.

(2) The Applicant is to pay the Respondent’s costs thrown away, as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) The appeal is upheld.

(4) Development Application No. SPP-21-00010 for construction of a 25-storey mixed-use development comprising ground level retail, commercial premises on Level 1 and residential apartments above including rooftop areas and 5 levels of basement car parking on Lot 2 Deposited Plan 1214977, also known as 2 - 6 First Avenue, Blacktown is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	2 - 6 First Ave Blacktown Pty Ltd ATF 2 - 6 First Ave Blacktown Unit Trust v Blacktown City Council [2023] NSWLEC 1221
Hearing dates:	Conciliation conference held on 28 April 2023
Date of orders:	10 May 2023
Decision date:	10 May 2023
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Leave is granted to rely on the amended documentation listed in Exhibit CM-2 to the affidavit of Catherine Marginson filed 21 April 2023 and in the conditions at Annexure ‘A’. (2) The Applicant is to pay the Respondent’s costs thrown away, as a result of the amendments made as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The appeal is upheld. (4) Development Application No. SPP-21-00010 for construction of a 25-storey mixed-use development comprising ground level retail, commercial premises on Level 1 and residential apartments above including rooftop areas and 5 levels of basement car parking on Lot 2 Deposited Plan 1214977, also known as 2 - 6 First Avenue, Blacktown is determined by a grant of consent subject to conditions contained in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – shop top housing with retail and commercial development – design quality – height development standard non-compliance – cl 4.6 written variation request – conciliation conference conciliation conference – agreement between the parties – orders
Legislation Cited:	Blacktown Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6, 7.5, 7.7, 7.12 Environmental Planning and Assessment Act 1979, ss 2.15, 4.15, 4.16, 4.417, 8.7, 8.15, 9.1 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Planning Systems) 2021, Sch 6, s 2 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100, 2.122 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cl 4
Texts Cited:	Blacktown Development Control Plan 2015 NSW Department of Planning and Environment, Apartment Design Guide, 2015
Category:	Principal judgment
Parties:	2 - 6 First Ave Blacktown Pty Ltd ATF 2 - 6 First Ave Blacktown Unit Trust (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: T To (Applicant) K Lindeman (Respondent) Solicitors: Mills Oakley (Applicant) Clayton Utz (Respondent)
File Number(s):	2022/160160
Publication restriction:	No