JS Architects Pty Ltd v Blacktown City Council

[2020] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation:	JS Architects Pty Ltd v Blacktown City Council [2020] NSWLEC 1045
Hearing dates:	Conciliation conference on 17 January 2020
Date of orders:	04 February 2020
Decision date:	04 February 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans as referred to in condition 3 of Annexure ‘A’ for the purpose of the development application. (2) The Applicant is granted leave to rely on the amended clause 4.6 variation entitled ‘Cl. 4.6 of the Blacktown LEP 2015 – Request to Vary the Maximum Building Height Development Standard – Proposed Residential Flat Building Development 3,5,7 and 9 Clifton Street, Blacktown’ authored by Tudor Planning and Design dated 2 September 2019. (3) The Applicant is to pay the Respondent's costs thrown away by the amendments in 2(a) under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed. (4) The appeal is upheld. (5) Development Application DA-18-00948 which seeks consent for the demolition of existing structures and the erection of a six-storey residential apartment building with basement car-parking is approved subject to the conditions contained in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	JS Architects Pty Ltd (First Applicant) Nexa Developers Pty Ltd (Second Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: P Vergotis (Solicitor) (Applicants) N Brunton (Solicitor) (Respondent)   Solicitors: McCabe Curwood Pty Ltd (Applicants) Norton Rose Fulbright (Respondent)
File Number(s):	2018/381505
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Blacktown refusal of Development Application No. DA-18-00948 (‘DA’).

2. The DA seeks approval for the demolition of existing structures, removal of trees and the construction of a six storey residential flat building containing 72 apartments (as amended) and associated works, including an access driveway to three basement parking levels, stormwater drainage and landscaping. The development would include 102 parking spaces, including 16 visitor spaces and 8 accessible spaces.

3. The proposed development is located across four existing lots (being at Nos. 3, 5, 9 and 9 Clifton Street, Blacktown) which are to be consolidated under the Development Application (‘site’). The legal descriptions of the parcels are as follows: Lot 17 Section N DP 2161 (No. 3 Clifton Street), Lot 18 Section N DP 2161 (No. 5 Clifton Street), Lot C DP 364188 (No. 7 Clifton Street), and Lot D DP 364188 (No. 9 Clifton Street).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 January 2020. I presided over the conciliation conference.

5. At the conciliation conference, the parties finalised an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. 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 DA. The parties indicate that the decision is one that the Court can make in the proper exercise of its functions, and provided commentary on relevant jurisdictional matters to demonstrate this and I so agree, in particular noting the following:

1. The application was notified, and the submissions subsequently received have been considered.

2. Having regard to State Environmental Planning Policy No 55 – Remediation of Land and in particular cl 7(1), a review of the ‘Stage 1 – Preliminary Environmental investigation report- Document No. NE357’ prepared by Geotesta Pty Ltd and dated 16 August 2018 was undertaken by Council. This report satisfied Council that the land was not contaminated and did not require any further investigation. I agree with Council and find that the relevant provision is satisfied.

3. Having regard to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (‘SEPP 65’), the design quality of the development has been considered (including with reference to the Apartment Design Guide) and the Applicant has filed a Design Verification Statement in accord with the requirements of cll 50(1AB) and 50(1A) of the Environmental Planning and Assessment Regulation 2000. Council is satisfied that the amended plans demonstrate that adequate regard has been given to the design quality principles under Schedule 1 of SEPP 65 of the ADG design criteria. I have reviewed Council’s advisings and agree that the proposal satisfies SEPP 65-related requirements.

4. The application is compliant with the development standards in Blacktown Local Environmental Plan 2015 (‘LEP’) with the exception of provisions at cl 4.3 relating to building height (a written request submitted by the Applicant under cl 4.6 of the LEP is considered below).

5. Having regard to design excellence, Council advises that it considered the design excellence matters set out in cl 7.7(4) of the LEP and was satisfied that the plans, as amended, exhibited design excellence. I have also reviewed the matters listed at cl 7.7(4) and the commentary that Council provided to the Court in regard to its own review (by email submitted 28 January 2020). In turn I consider that the development exhibits design excellence.

7. The Applicant has filed a written request under cl 4.6 of the LEP to vary the standard at cl 4.1A of the LEP relating to minimum lot size for residential flat buildings. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of the LEP, 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 the LEP). This is because the written request shows how, otherwise, the development achieves the planned density, visual impact, privacy and solar access and development interface ambitions, and thus results in the achievement of the objective of cl 4.3.

2. The written request adequately establishes that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b) of the LEP). This is through demonstrating how the development’s combination of density and design quality (including the amendments incorporated in the course of the conciliation) fits the context, is consistent with the zone objectives and is in alignment with s 1.3 of the EPA Act.

3. On the basis of the above, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the zone (cl 4.6(4)(a)(i) of the LEP).

4. For the reasons outlined above, I am also 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 height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP are met.

5. Mindful of cl 4.6(5), I am satisfied the proposal does not raise any matter of significance for State or regional environmental planning.

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

8. On the basis of the above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

9. 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.

10. The Court orders:

1. The Applicant is granted leave to rely on the amended plans as referred to in condition 3 of Annexure ‘A’ for the purpose of the development application.

2. The Applicant is granted leave to rely on the amended cl 4.6 variation entitled ‘cl. 4.6 of the Blacktown LEP 2015 – Request to Vary the Maximum Building Height Development Standard – Proposed Residential Flat Building Development 3,5,7 and 9 Clifton Street, Blacktown’ authored by Tudor Planning and Design dated 2 September 2019.

3. The Applicant is to pay the Respondent's costs thrown away by the amendments in 2(a) under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.

4. The appeal is upheld.

5. Development Application DA-18-00948 which seeks consent for the demolition of existing structures and the erection of a six-storey residential apartment building with basement car-parking is approved subject to the conditions contained in Annexure ‘A’.

…………………………..

P Walsh

Commissioner of the Court

Annexure A (535 KB, pdf)

Plans (5.89 MB, pdf)

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Decision last updated: 11 February 2020