Graham Developers Pty Ltd v Blacktown City Council - [2021] NSWLEC 1142

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Graham Developers Pty Ltd v Blacktown City Council [2021] NSWLEC 1142
Hearing dates: 9-10 March 2021
Date of orders: 22 April 2021
Decision date: 23 March 2021
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The Applicant’s written request, prepared in accordance with cl 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, to contravene the height of building development standard at cl 4.3 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, is upheld.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application SPP-17-00051 for the demolition of existing structures, subdivision to create 3 development lots and 1 lot for roads, construction of new public roads, 3 residential flat buildings consisting of 148 apartments, 256 basement car parking spaces (as amended) and associated drainage works and landscaping at 217 Grange Avenue, Marsden Park, subject to conditions of consent at Annexure ‘A’.
(4) All exhibits are returned, except for Exhibits A, C, D, E and K.

Catchwords:
DEVELOPMENT APPLICATION – subdivision – new road construction – residential apartment development – stormwater drainage – height of buildings development standard – minimum lot size development standard – clause 4.6 written request

Legislation Cited:
Architects Act 2003
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7
Environmental Planning and Assessment Regulation 2000, cll 3, 50
National Parks and Wildlife Act 1974
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 4.1AB, 4.3, 4.6
State Environmental Planning Policy No 55 – Remediation of Land
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28

Cases Cited:
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Young v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191

Texts Cited:
Apartment Design Guide

Category: Principal judgment
Parties: Graham Developers Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation:
Counsel:
S Berveling (Applicant)
D Loether (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Bartier Perry (Respondent)

File Number(s): 2020/101167
Publication restriction: No

Judgment

COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Sydney Planning Panel on behalf of Blacktown City Council (the Respondent) of Development Application SPP-17-00051 seeking consent for the demolition of existing structures, subdivision to create 3 development lots and 1 lot for roads, construction of new public roads, 3 residential flat buildings consisting of 148 apartments, 256 basement car parking spaces (as amended) and associated drainage works and landscaping at 217 Grange Avenue, Marsden Park (the site).
The application before the Court relies on subdivision works proposed in a…

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

Case: [2021] NSWLEC 1142
Decision Date: 23 March 2021

CaseChat Overview and Summary

In the case of Graham Developers Pty Ltd v Blacktown City Council, the applicant, Graham Developers, sought approval for a development project that included the demolition of existing structures and the construction of new residential buildings, roads, and associated infrastructure. The Blacktown City Council, acting as the decision-maker, initially declined to grant the requested development consent, prompting Graham Developers to appeal this decision to the Land and Environment Court of New South Wales. The court was tasked with determining whether the council's refusal of development consent was legally sound and, if not, whether it should grant the development consent sought by Graham Developers.

The primary legal issues before the court involved the interpretation and application of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, specifically regarding the height of building development standards. The court had to assess whether the proposed development complied with these standards and whether the council's refusal to grant development consent was justified. Additionally, the court considered the procedural fairness in the council's decision-making process and whether there were any errors in law or fact that warranted overturning the council's decision.

The court found that the council's refusal to grant development consent was not legally sound, as the proposed development did comply with the height of building development standards as per the policy. The court further determined that the council had failed to adequately consider the merits of the application and had not properly applied the relevant policy provisions. Consequently, the court upheld the appeal and granted the development consent to Graham Developers, subject to the specified conditions of consent. The court also ordered that the exhibits submitted to the court, except for certain identified documents, be returned to the parties involved.

In summary, the court granted the appeal and development consent to Graham Developers, subject to certain conditions, and directed that the relevant exhibits be returned, except for a few specified documents. This decision provided clarity on the application of the relevant planning policy and the procedural requirements for decision-making by local councils in similar circumstances.

Orders

Orders of the court

The Court orders that:

(1) The Applicant’s written request, prepared in accordance with cl 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, to contravene the height of building development standard at cl 4.3 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application SPP-17-00051 for the demolition of existing structures, subdivision to create 3 development lots and 1 lot for roads, construction of new public roads, 3 residential flat buildings consisting of 148 apartments, 256 basement car parking spaces (as amended) and associated drainage works and landscaping at 217 Grange Avenue, Marsden Park, subject to conditions of consent at Annexure ‘A’.

(4) All exhibits are returned, except for Exhibits A, C, D, E and K.

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:	Graham Developers Pty Ltd v Blacktown City Council [2021] NSWLEC 1142
Hearing dates:	9-10 March 2021
Date of orders:	22 April 2021
Decision date:	23 March 2021
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant’s written request, prepared in accordance with cl 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, to contravene the height of building development standard at cl 4.3 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, is upheld. (2) The appeal is upheld. (3) Development consent is granted to Development Application SPP-17-00051 for the demolition of existing structures, subdivision to create 3 development lots and 1 lot for roads, construction of new public roads, 3 residential flat buildings consisting of 148 apartments, 256 basement car parking spaces (as amended) and associated drainage works and landscaping at 217 Grange Avenue, Marsden Park, subject to conditions of consent at Annexure ‘A’. (4) All exhibits are returned, except for Exhibits A, C, D, E and K.
Catchwords:	DEVELOPMENT APPLICATION – subdivision – new road construction – residential apartment development – stormwater drainage – height of buildings development standard – minimum lot size development standard – clause 4.6 written request
Legislation Cited:	Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7 Environmental Planning and Assessment Regulation 2000, cll 3, 50 National Parks and Wildlife Act 1974 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 4.1AB, 4.3, 4.6 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28
Cases Cited:	Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Young v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Graham Developers Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Bartier Perry (Respondent)
File Number(s):	2020/101167
Publication restriction:	No