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

1. 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

2. 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 in objection included: increased parking and traffic, noise and excavation stability.

3. The DA was referred to the relevant authorities, being Transport for NSW (TfNSW), Caltex Australia and NSW Police, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA was also referred to the Sydney Central City Planning Panel (the Panel), pursuant to s 2.15(a) of the EPA Act.

4. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act. The Panel refused consent for the DA on 11 November 2022, after the appeal was filed.

5. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held in person.

7. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application SPP-21-00010, with conditions.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to relevant jurisdictional requirements, to grant consent to SPP-21-00010, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements are specifically addressed:

1. Blacktown Local Environmental Plan 2015 (BLEP):

1. Pursuant to cl 2.3 of the BLEP, the proposed residential development is situated over land zoned B4 Mixed Use. The proposed development as described to the Court is permissible with consent. I am satisfied that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the BLEP, including cll 4.3, 4.4, 4.6, 7.5, 7.7 and 7.12.

2. Clause 7.7 of the BLEP is engaged because the amended application relates to land located on the Design Excellence Map, pursuant to cl 7.7(2). The amended application is supported by a Design Excellence Assessment filed in Exhibit CM-2. I am satisfied that the amended application delivers high standards of architectural and urban design, pursuant to subcll 7.7(1) and (3), and has had regard to the relevant requirements of cl 7.7(4) of the BLEP, as outlined below:

1. The proposed building design and materials respond to the desired character of the area, with a height, density, built form, colour and materials that are responsive to adjoining properties and activate the street frontage.

2. Proposed building is well set back in the rear lane, and has retail at ground level to activate the street frontage, services are enclosed, commercial space is visually well-articulated and the residential lobby is visible from the streetscape.

3. The design of the building does not cause adverse impact on view corridors, public domain, or amenity of adjoining developments.

4. The design of the building has considered and adopted the relevant sustainable design principles, as described in the Apartment Design Guide (ADG).

5. The design of the building is suitable for the land, considers existing and future surrounding land use, achieves and adopts ecologically sustainable development principles, and provides appropriate pedestrian and vehicular access.

6. The amended application appropriately considers its relationship to the existing and future urban streetscape.

2. State Environmental Planning Policy (Planning Systems) 2021 (SEPP Planning):

1. The DA has a capital investment over $30 million and therefore is deemed a regionally significant development, pursuant to s 2 of Sch 6 of SEPP Planning. There are no further relevant considerations of the SEPP Planning provisions required to grant consent.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site is in proximity to a rail corridor and the application proposes excavation, therefore ss 2.99 and 2.100 of the SEPP Infrastructure are engaged. The site is located at least 65 m from the rail corridor and is separated by an adjoining development. The DA is supported by an Acoustic Report that considers potential noise impact to future residents. I am satisfied that ss 2.99 and 2.100 are addressed by the amended DA and the conditions of consent.

2. The DA is considered to generate traffic, pursuant to s 2.122 of the SEPP Infrastructure. The DA relies on the creation of 200 car parking spaces, and TfNSW have provided no objections to the DA. I am satisfied that the requirements of s 2.122 are sufficiently addressed by the amended DA and conditions of consent

4. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65):

1. As the DA relates to residential apartments, assessment of the amended application requires relevant provisions as set out in the SEPP 65 and the ADG to be considered, pursuant to cl 4. The amended DA is supported by a Design Verification Statement and the design has considered the amenity of residents. I am satisfied that the relevant requirements of SEPP 65 are addressed.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the supporting documents to the amended DA, I am satisfied that the Council has appropriately considered that the contamination status of the site and it satisfies the relevant requirements of s 4.6 based on the Detailed Site Investigation and Remedial Action Plan, both prepared by Douglas Partners, dated February 2016, and which together with the conditions of consent address any unexpected finds.

6. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:

1. A BASIX Certificate (1387562M) issued 27 April 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

7. Blacktown Development Control Plan 2015 (BDCP):

1. The original DA was publicly notified in accordance with the BDCP, with two submissions received. The relevant requirements of the BDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and the conditions of consent.

10. Pursuant to cl 49 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. The Council has undertaken the appropriate merit assessment of the proposed development and considered the issues raised by adjoining properties. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA.

13. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application SPP-21-00010 can be determined by granted of consent.

14. 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.

15. The Court notes that:

1. Blacktown City Council, as the delegate of the relevant consent authority being the Sydney Central City Planning Panel, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. SPP-21-00010 in accordance with the documents and plans referred to in the Exhibit CM-2 to the affidavit of Catherine Marginson filed 21 April 2023 and in the conditions at Annexure ‘A’.

2. The amended development application was filed with the Court on 28 April 2023.

16. The Court orders that:

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’.

Sarah Bish

Commissioner of the Court

160160.22 Annexure A (464384, pdf)

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Decision last updated: 10 May 2023