Coles Group Property Developments Ltd v Blacktown City Council

[2019] NSWLEC 1531

Land and Environment Court

New South Wales

Medium Neutral Citation:	Coles Group Property Developments Ltd v Blacktown City Council [2019] NSWLEC 1531
Hearing dates:	Conciliation conference on 23 October 2019
Date of orders:	05 November 2019
Decision date:	05 November 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [28] below
Catchwords:	DEVELOPMENT APPLICATION – concept plan and Stage 1 of a shopping centre – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited:	Blacktown City Council Growth Centres Precincts Development Control Plan 2018 Blacktown Development Control Plan 2015
Category:	Principal judgment
Parties:	Coles Group Property Developments Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) C McEwen SC (Respondent)   Solicitors: Allens (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/197119
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Coles Group Property Developments Ltd (Coles), being the applicant, lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Blacktown City Council (the Council) of Development Application SPP-17-00047 (the application).

2. The application as lodged sought concept approval and Stage 1 works approval for a new shopping centre at 227 Railway Terrace, Schofields (the site). The concept application lodged pursuant to s 4.22 of the EPA Act comprised shops and a child care centre, building envelopes, public domain elements, landscaping, roads, car parking and associated infrastructure. The Stage 1 components of the application proposed the construction and use of the site for a Coles’ supermarket and speciality retail shops, a 67 place child care centre, 355 at-grade and basement car parking spaces, signage and associated new roads, stormwater works and landscaping.

3. The site is located opposite Schofields’ railway station and adjoining an existing Woolworths’ shopping centre. It is accessed from Railway Terrace.

4. The Council notified the application and two objections to it were received. Concerns raised included the impact on local roads and parking for the station. The adjoining owner to the south also raised concerns about the proposed construction and design of the roads to service the amount of traffic anticipated.

5. The application was referred, as required under State Environmental Planning Policy (Infrastructure) 2007, to Roads and Maritime Services (RMS) and to Sydney Trains.

6. RMS responded raising requirements in terms of proposed traffic signals, the modelling, proposed temporary access arrangements, and pedestrian access to the site. Sydney Trains provided the Council with recommended conditions of consent.

7. The site is located in the ‘Alex Avenue Precinct’ of the North West Growth Centre where development is subject to the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP). Appendix 4 of the Growth Centres SEPP contains the Alex Avenue Precinct Plan. Under the SEPP, the proposed development is permissible with consent and complies with the maximum building height of 18.5m. The majority of the site is zoned B2 Local Centre other than the southern portion which is zoned R3 Medium Density Residential.

8. Development is also subject to controls in the Blacktown City Council Growth Centres Precincts Development Control Plan 2018 (the Growth Centres DCP) as well as general controls in the Blacktown Development Control Plan 2015.

9. An indicative development layout is contained within the Growth Centres DCP which shows the site comprising part of a designated Local Centre. This centre also includes the Woolworths’ development, already constructed and adjoining the site to the north, as well as a future Town Plaza accessed from the station. The Growth Centres DCP also contains a road layout for future public roads in the Local Centre.

10. On 26 June 2018, the applicant filed the appeal against the deemed refusal of the application. In response, the Council filed a Statement of Facts and Contentions (SFC) raising a series of contentions. On 20 March 2019, the Court granted leave to the applicant to amend the application by way of amendments to the plans and documentation to respond to the contentions raised.

11. The amended application was notified and a further submission received from the objector to the south at 239 Railway Terrace, raising concerns as to how the infrastructure was being funded and the need to provide for the orderly development of the area.

12. In an amended SFC filed with the Court, the Council advised that a number of contentions had been resolved. However, the remaining major contentions related to the applicant’s proposal to provide private roads and on-site stormwater (drainage) infrastructure rather than constructing public roads and contributing to regional stormwater infrastructure. In particular, the Council was concerned with the proposed design of the roads as well as the implications for traffic and pedestrian safety and orderly development. Concurrence had also not been provided by RMS and the proposed traffic signals also could not be installed without the approval of RMS.

13. Specific concerns were also raised in terms of providing adequate loading facilities for delivery vehicles to an approved McDonalds’ restaurant on the site, proposed development over a lot owned by the Council (Lot 1), and the temporary on-site stormwater detention. As a consequence of the proposed private road and drainage detention, there was also a dispute about the required developer contributions to terms of drainage and traffic facilities.

14. The appeal was listed for hearing before me. However, after commencing the hearing onsite, with a view of the site and surrounds but without any objectors, the parties continued to confer with respect to amendments to the application and agreed that amendments could be undertaken, supported by both parties, which addressed the contentions.

15. The parties therefore requested that the hearing be adjourned and the matter be listed as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This occurred and I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated.

16. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

18. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

19. It is therefore relevant, firstly, to summarise the nature of the amended application the subject of the agreement. In essence, the parties came to an agreement on the required road and stormwater infrastructure which would be provided and the contributions that would be paid.

20. In terms of the pre-conditions to the granting of consent, the development as amended will be undertaken over three parcels of land in separate ownership: being Lot 30 in DP 1191922 and Lot 2 in DP 1248598 owned by Coles; Lot 1 in DP 1248598 owned by the Council; and part of Lot 2 in DP 26987 being land owned by Mr Chang (239 Railway Terrace), a small portion of which is required for the approved road design. Evidence was provided to the Court of each of the landowner’s consent to the application.

21. The Council has agreed to enter into a Deed to extend the existing rights of access over Lot 1 granted to Coles to include Coles’ invitees and members of the public until the Council opens Lot 1 as a public road.

22. A deferred commencement condition of consent requires the applicant to submit to RMS the proposed Traffic Control Signal Plan, supporting Traffic Modelling Report, and civil design plan for the intersection of Railway Terrace and Jaqui Avenue for their review and in principle approval, before the consent can become operational. Operational conditions of consent include the requirements of RMS being met in terms of the design of the proposed traffic lights at the intersection of Railway Terrace and Jaqui Avenue.

23. The requirements of Sydney Trains have also been imposed as conditions.

24. A number of detailed conditions deal with the road infrastructure and drainage requirements and require an appropriately designed interface with the site to the south having regard to the objector’s concerns.

25. On this basis, and having regard to the amendments undertaken to the application, I am satisfied that the relevant concerns raised by the objectors have been considered as part of the conciliated outcome.

26. Consideration was given by the parties to the requirements of State Environmental Planning Policy No 55 – Remediation of Land. A detailed site investigation report has been prepared confirming the site is suitable for the proposed use with relatively minor and straightforward remediation. The conditions of consent require remediation in accordance with the recommendations of that report.

27. Finally, the Sydney Central City Planning Panel has informed the Council that it may enter into the s34 agreement.

28. Accordingly, the Court orders that:

1. The Applicant is granted leave to amend Development Application No. SPP-17-00047 to rely upon the following amended plans:

Prepared By	Drawing No.	Revision	Dated
Henry & Hymas	17B01_DA_C000	04	11.10.2019
Henry & Hymas	17B01_DA_C100	04	11.10.2019
Henry & Hymas	17B01_DA_C101	06	11.10.2019
Henry & Hymas	17B01_DA_C102	06	11.10.2019
Henry & Hymas	17B01_DA_C200	03	11.10.2019
Henry & Hymas	17B01_DA_C201	04	11.10.2019
Henry & Hymas	17B01_DA_C202	04	11.10.2019
Henry & Hymas	17B01_DA_C203	02	30.05.2019
Henry & Hymas	17B01_DA_C204	01	11.10.2019
Henry & Hymas	17B01_DA_C210	04	11.10.2019
Henry & Hymas	17B01_DA_C211	04	11.10.2019
Henry & Hymas	17B01_DA_C251	04	11.10.2019
Henry & Hymas	17B01_DA_C253	01	11.10.2019

2. The Court notes that, as the parties agree that the amendments shown in the above plans are minor, no order is required to be made under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The appeal is upheld.

4. Development consent is granted to Development Application No. SPP-17-00047 for concept approval for retail shops and a child care centre, building envelopes, public domain elements, landscaping, roads, car parking and associated infrastructure, and approval for the construction and use of the 'Stage 1' component of the development containing a Coles supermarket and speciality retail shops, a 67 place child-care centre, 355 at-grade and basement car parking spaces, signage and associated new public roads, stormwater works and landscaping, subject to the conditions of consent annexed hereto and marked "A".

……………………………

Jenny Smithson

Commissioner of the Court

Annexure A (1.30 MB, pdf)

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Decision last updated: 05 November 2019