Eastview (Australia) Pty Limited v Blacktown City Council

[2021] NSWLEC 1792

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eastview (Australia) Pty Limited v Blacktown City Council [2021] NSWLEC 1792

Hearing dates:

Conciliation conference on 1, 22 September, 12 October, 8, 23 November, 6 and 10 December 2021, final agreement filed 13 December 2021

Date of orders:

23 December 2021

Decision date:

23 December 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

1) Leave is granted to the Applicant to amend Development Application SPP-21-00002 and rely on the amended architectural plans listed at condition 2.1.1 of Annexure A.

2) Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the amount of $20,000 within 28 days of these orders.

3) The appeal is upheld.

4) The Applicant’s written request made pursuant to clause 4.6 of Blacktown Local Environmental Plan 2015 (BLEP) in relation to the proposed non-compliance with clause 4.3 of the BLEP (Height of Buildings), prepared by Willow Tree Planning and dated 14 September 2021 is upheld.

5) Consent is granted to Development Application SPP-21-00002, lodged on 12 March 2021, as amended, for demolition of existing buildings and construction of a 15-storey mixed-use development comprising a ground level pub, first floor function centre and 13 residential levels consisting of 139 apartments with 6 basement levels of car parking at 34-46 Flushcombe Road, Blacktown, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed-use – residential apartment development – cl 4.6 written request – agreement between the parties – orders

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 4.3, 4.6, 5.21, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.7A, 7.9, 7.12, 7.14

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Eastview (Australia) Pty Limited (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
G Hartley (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Norton Rose Fullbright (Respondent)

File Number(s):

2021/149406

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application SPP-21-00002 (DA) by Blacktown City Council (the Respondent). The DA sought consent for demolition of all existing buildings and structures, and the construction of a 16-storey mixed-use development comprising ground level restaurant and pub, first floor function centre, 14 residential levels comprising 150 apartments, with 5 basement levels including loading facilities and parking for 166 cars, at 34-46 Flushcombe Road, Blacktown (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1, 22 September, 12 October, 8, 23 November, 6 and 10 December 2021. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Whilst the amended Application remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions initially raised by the Respondent, which in turn relate primarily to traffic and parking, site isolation, building height, design excellence, unit mix and waste management, amongst other contentions.

6. Of note, the amended DA has reduced the proposed scale of the residential component from 14 to 13 levels, with a reduction in the number of apartments from 150 to 139, and a corresponding increase in car parking from 166 to 230 spaces.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended Development Application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The parties agree, and I am satisfied, the Blacktown Local Environmental Plan 2015 (BLEP) is a relevant environmental planning instrument. The site is zoned B4 Mixed Use and the proposed development is permissible with consent.

11. The parties agree, and I am satisfied, that the DA is consistent with the B4 zone objectives of the BLEP, which include “to integrate suitable business, office, retail and other development in accessible locations so as to maximise transport patronage and encourage walking and cycling”.

12. The parties agree, and I am satisfied, that with the exception of cl 4.3 - Height of Buildings, all principal development standards of the BLEP have been met by the proposal.

13. The parties agree, and I am satisfied, that the maximum height of building development standard set out at cl 4.3 of the BLEP and applicable to the site, is 50m.

14. The amended Development Application exceeds the maximum height of building development standard by 4.87m attributable primarily to a roof terrace, plant, equipment and an architectural roof feature.

15. In such an instance, cl 4.6(3) of the BLEP requires consideration of a written request from the Applicant demonstrating compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

16. Clause 4.6(4) of the BLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

17. Additionally, cl 4.6(4)(b) of the BLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

18. As required by cl 4.6 of the BLEP, the Applicant has provided a written request (prepared by Willow Tree Planning and dated 14 September 2021) seeking to vary the height of building development standard. The parties agree, and I am satisfied, that the written request adequately justifies the exceedance of the height of building development standard for the following reasons.

19. The height variation of 4.87m represents a proposed variation to the development standard of 9.74%. The variation results from the provision of communal open space, plant and equipment, and an architectural roof feature to the western elevation of the proposal. The amended DA otherwise presents as a fifteen storey building form. The variation in building height brings with it no material environmental impacts or additional overshadowing.

20. The parties agree, and I am satisfied, that the following clauses of the BLEP, which otherwise establish a jurisdictional threshold, do not apply to the subject proposal and present no barrier to the grant of consent:

1. cl 5.21 - Flood planning

2. cl 7.2 - Terrestrial biodiversity

3. cl 7.3 - Riparian land and watercourses

4. cl 7.6 - Converting serviced apartments to residential flat building

5. cl 7.7A - Height of buildings exhibiting design excellence in Blacktown CBD and Mount Druitt CBD

6. cl 7.9 - Development with frontage to certain roads in Zone SP2

21. The parties agree, and I am satisfied, that those matters set out in cl 7.4 - Active street frontages - of the BLEP have been adequately addressed. It is noted all premises on the ground floor of the building facing Flushcombe Road are a retail premises.

22. The parties agree, and I am satisfied, that those matters set out in cl 7.5 - Essential services - of the BLEP have been adequately addressed as the specified services are available at the site.

23. The parties agree, and I am satisfied, that those matters set out in cl 7.7 - Design excellence - of the BLEP have been adequately addressed. It is noted the architectural roof feature and the proposed public art facade contribute to the achievement of design excellence.

24. The parties agree, and I am satisfied, that matters set out in cl 7.12 - Development in Zone B4 - of the BLEP have been adequately addressed. It is noted the ground floor and first floor of the proposed development will be used for a purpose other than residential accommodation.

25. The parties agree, and I am satisfied, that matters set out in cl 7.14 - Solar access to key public open spaces in Blacktown CBD - of the BLEP have been appropriately demonstrated.

26. The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The Applicant has submitted a Preliminary (Stage 1) Site Investigation Report that indicates that the historical uses of the site and surrounds were unlikely to cause contamination. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed.

27. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development. Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Mr Steve Zappia (registered architect 6535), has prepared a Design Verification Statement dated 2 February 2021, fulfilling the requirements of cl 50(1AB) of the EPA Reg.

28. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). A BASIX certificate has been submitted with the DA. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

29. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

30. Accordingly, the Court notes that:

1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent.

2. The Respondent has uploaded the amended Development Application to the NSW Planning Portal on 13 December 2021

3. The Applicant has filed the amended Development Application with the Court.

Orders

31. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application SPP-21-00002 and rely on the amended architectural plans listed at condition 2.1.1 of Annexure A.

2. Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the amount of $20,000 within 28 days of these orders.

3. The appeal is upheld.

4. The Applicant’s written request made pursuant to clause 4.6 of Blacktown Local Environmental Plan 2015 (BLEP) in relation to the proposed non-compliance with clause 4.3 of the BLEP (Height of Buildings), prepared by Willow Tree Planning and dated 14 September 2021 is upheld.

5. Consent is granted to Development Application SPP-21-00002, lodged on 12 March 2021, as amended, for demolition of existing buildings and construction of a 15-storey mixed-use development comprising a ground level pub, first floor function centre and 13 residential levels consisting of 139 apartments with 6 basement levels of car parking at 34-46 Flushcombe Road, Blacktown, subject to the conditions in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

(Annexure A) (468667, pdf)

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Decision last updated: 23 December 2021