JS Architects Pty Ltd v Blacktown City Council

[2023] NSWLEC 1506

Land and Environment Court

New South Wales

Medium Neutral Citation:

JS Architects Pty Ltd v Blacktown City Council [2023] NSWLEC 1506

Hearing dates:

Conciliation conference on 4 September 2023

Date of orders:

07 September 2023

Decision date:

07 September 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 22-00612, as amended, for the construction of a two-storey indoor recreation facility, including a gymnasium, swimming centre, wellness centre and ground floor and basement car parking, at premises known as 308 Wianamatta Parkway, Ropes Crossing, is determined by the grant of consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – indoor recreation facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

JS Architects Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
D Havadjia (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/253058

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 22-00612, as amended, for the construction of a two-storey indoor recreation facility, including a gymnasium, swimming centre, wellness centre and ground floor and basement car parking (the proposal), at 308 Wianamatta Parkway, Ropes Crossing (the site), by Blacktown City Council (the Council).

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 4 September 2023. I presided over the conciliation conference. 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.

3. 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 development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended Plans

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition 2.1.1 of the conditions of consent at Annexure A.

Jurisdictional pre-requisites to the grant of consent

6. The site is with the St Marys Structure Plan, as defined by Ch 6 of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (SEPP Precincts WPC). The site is zoned Urban and Employment under the provisions of Pt 6.6 of SEPP Precincts WPC and the proposal is permissible with consent. The objectives of the two zones are:

6.39 Employment zone

(1) The objectives of the Employment zone are—

(a) to provide land for employment-generating land uses in locations which are compatible with surrounding development and which are accessible from within and outside the land to which this Chapter applies, and

(b) to provide for a wide range of employment development on land which will complement established employment areas and retail and commercial centres in the Blacktown City and Penrith City local government areas, and

(c) to accommodate uses which generate business activity and employment opportunities in the Blacktown City and Penrith City local government areas, and

(d) to ensure that development adjacent to the Regional Park zone does not have a negative impact on the biodiversity or conservation values of land within that zone.

6.40 Urban zone

(1) The objectives of the Urban zone are—

(a) to ensure that buildings and works within the zone are primarily used for residential purposes and associated facilities, and

(b) to limit the range and scale of non-residential uses to ensure that they are compatible with residential amenity and primarily serve local residents, and

(c) to provide for local retailing and related services, including supermarkets, which will complement established centres in the Blacktown City and Penrith City local government areas and not have a significant adverse effect on the viability of established retail centres, and

(d) to provide for medium density residential development in locations which provide optimum access to employment, public transport and services, while ensuring residential amenity, and

(e) to promote home based industries where such activities are unlikely to adversely affect the living environment of neighbours, and

(f) to ensure that development adjacent to the Regional Park zone does not have a negative impact on biodiversity or conservation within that zone.

7. The development application was referred to the National Parks and Wildlife Service pursuant to s 6.44 of the SEPP Precincts WPC. I accept the Council’s submission that the amended proposal addresses the concerns raised in the referral response from the National Parks and Wildlife Service.

8. I accept the Council’s submission that the Arboricultural Report dated 12 March 2023 and Arboricultural Impact Statement dated 10 March 2023 submitted with the application satisfactorily addresses the requirements of s 6.53(3) of SEPP Precincts WPC.

9. I accept the Council’s submission that an Aboriginal Cultural Heritage Assessment dated 4 December 2017, an Aboriginal Impact Statement dated 25 January 2023 and a letter of Aboriginal Heritage Advice dated 6 February 2023 satisfactorily addresses the requirements of s 6.57 of SEPP Precincts WPC.

10. I accept the Council’s submission that all applicable services are available to the site, pursuant to cl 6.61 of SEPP Precincts WPC.

11. I accept the Council’s submission that bushfire matters, and the issues raised by the Rural Fire Service following referral of the application as the site is bushfire prone land, have been satisfactorily addressed by the Bushfire Emergency Management and Evacuation Plan dated 10 March 2023 and conditions contained in the conditions of consent at Annexure A.

12. I accept the Council’s submission that the site is suitable for the proposed development, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 on the basis of the Preliminary Site Investigation Report dated 13 February 2023 submitted with the application

Conclusion

13. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 31 August 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

14. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 22-00612, as amended, for the construction of a two-storey indoor recreation facility, including a gymnasium, swimming centre, wellness centre and ground floor and basement car parking, at premises known as 308 Wianamatta Parkway, Ropes Crossing, is determined by the grant of consent subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

**********

Decision last updated: 07 September 2023