Harb v Blacktown City Council

[2020] NSWLEC 1261

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harb v Blacktown City Council [2020] NSWLEC 1261
Hearing dates:	Conciliation conference on 11 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	Refer to orders below at [8]
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited:	Blacktown City Council Growth Centre Precincts Development Control Plan 2010
Category:	Principal judgment
Parties:	Tony Harb (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) D Loether (Solicitor) (Respondent)
File Number(s):	2019/329307
Publication restriction:	No

Judgment

1. COMMISSIONER: Development Application DA-19-00686 was lodged with Blacktown City Council on 17 May 2019 seeking consent for an attached dual occupancy at 34 Galbraith Street, Quakers Hill. The council refused consent on 7 August 2019 and the applicant is appealing that determination.

2. In this matter, at the conciliation conference held on 11 June 2020, and in response to amended plans filed by the applicant, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Court Act required me to “dispose of the proceedings in accordance with the decision”.

3. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I have formed this state of satisfaction for the following reasons:

1. The proposed use is permissible in the R2 Low Density Residential zone of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP) pursuant to Appendix 7 Schofields Precinct Plan of the SEPP.

2. The Applicant has filed a cl 4.6 variation request to vary the development standard at cl 4.1AB Minimum lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential under the SEPP. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of Blacktown Local Environmental Plan 2015 (LEP 2015), I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of LEP 2015).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2015).

3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2015 are met.

4. For the reasons outlined in the written requests, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the Minimum lot sizes for residential development in Zone R2 development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2015 are met.

5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

3. The development satisfies the relevant requirements of the SEPP and the Blacktown City Council Growth Centre Precincts Development Control Plan 2010.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders that:

1. The applicant is granted leave to amend Development Application No. DA-19-00686 and to rely upon the following amended plans and documents:

Architectural Plans prepared by H.A. Design Group Pty Ltd
Plan Reference	Revision
Site Plan, Ref: 18041, Sheet 1	Revision D dated 5 June 2020
Site Analysis, Ref: 18041, Sheet 2	Revision D dated 5 June 2020
Ground Floor, Ref 18041, Sheet 3	Revision D dated 5 June 2020
First Floor , Ref 18041, Sheet 4	Revision D dated 5 June 2020
Roof Plan, Ref 18041, Sheet 5	Revision D dated 5 June 2020
Elevations, Ref 18041, Sheet 6	Revision D dated 5 June 2020
Elevations, Ref 18041, Sheet 7	Revision D dated 5 June 2020
Sections, Ref 18041, Sheet 8	Revision D dated 5 June 2020
Soil & Water Management, Ref 18041, Sheet 9	Revision D dated 5 June 2020
Landscape Plan, Ref 18041, Sheet 20	Revision D dated 5 June 2020
Materials and Finishes, Ref 18041, Sheet 21	Revision D dated 5 June 2020
Documents
Clause 4.6 Variation Statement prepared by Rockeman Town Planning dated 11 June 2020
NatHERS Certificate No. 0004906780 prepared by HA Design Group dated 9 June 2020
NatHERS Certificate No. 0004906798 prepared by HA Design Group dated 9 June 2020
BASIX Certificate Number 1108507M prepared by Elam Architectural Drafting dated 9 June 2020

2. The appeal is upheld.

3. Development Application No. DA 19-00686 (as amended) for an attached dual occupancy development on Lot 16 in Deposited Plan 1221556, otherwise known as 34 Galbraith Street Quakers Hill is approved subject to conditions included at Annexure “A”.

4. The Applicant’s written request, dated 11 June 2020 prepared by Rockeman Town Planning, made pursuant to clause 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking a variation of the development standard for minimum lot size set out at clause 4.1AB is upheld.

……………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (175724, pdf)

Plans (3448861, pdf)

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Decision last updated: 23 June 2020