Mookhy v Blacktown City Council
[2019] NSWLEC 1359
•31 July 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Mookhy v Blacktown City Council [2019] NSWLEC 1359 Hearing dates: Conciliation conference on 25 July 2019 Date of orders: 31 July 2019 Decision date: 31 July 2019 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders:
(1) Leave is granted to the Applicants to rely upon the amended plans and documents listed in condition 3 of the Conditions of Consent.
(2) The Applicant’s written request pursuant to clause 4.6 of Part 4 of Appendix 12 of the SEPP (Sydney Region Growth Centres) 2006 (SRGC SEPP) seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of Part 4 of Appendix 12 of the SRGC SEPP prepared by Think Planners Pty Ltd dated June 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the SRGC SEPP. Consequently, the Applicants’ written request is well founded and is upheld.
(3) The appeal is upheld.
(4) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicants’ are to pay those costs of the respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed.
(5) Development Application No SPP/17/00037 seeking consent for a 4-staged development comprising the following:
(a) Stage 1:- Torrens title subdivision of 1 lot into 2 super lots and one Drainage Reserve (lot 3) and civil works consisting of construction of roads, footpaths and temporary access road and footpath through Stage 4.
(b) Stage 2:- Construction of basement Stage 2 and residential apartment buildings A, B, C and D.
(c) Stage 3:- Construction of basement Stage 3 and residential apartment building E.
(d) Stage 4:- Construction of Basement stage 4 and residential apartment buildings F, G and H;
is approved subject to conditions annexed hereto and marked “A”.Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: 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
State Environmental Planning Policy (Sydney Region Growth Centres) 2006Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Texts Cited: Blacktown City Council Growth Centre Precincts Development Control Plan Category: Principal judgment Parties: Avinash Mookhy (First Applicant)
Sarita Mookhy (Second Applicant)
Blacktown City Council (Respondent)Representation: Solicitors:
B Shamieh, Madison Marcus (Applicants)
N Brunton, Norton Rose Fullbright (Respondent)
File Number(s): 2018/142606 Publication restriction: No
Judgment
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COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Blacktown City Council's deemed refusal of development application No. SPP/17/00037.
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The applicant seeks consent for a four staged development at 166 Guntawong Rd, Riverstone (Lot 49 in DP 30186) comprising the following:
Stage 1: Torrens title subdivision of 1 lot into 2 super lots and one Drainage Reserve (lot 3) and civil works consisting of construction of roads, footpaths and temporary access road and footpath through Stage 4.
Stage 2: Construction of basement Stage 2 and residential apartment buildings A, B, C and D.
Stage 3: Construction of basement Stage 3 and residential apartment building E.
Stage 4: Construction of basement Stage 4 and residential apartment buildings F, G and H.
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The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 25 July 2019, and at which I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
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This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
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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.
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The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties outlined jurisdictional matters of relevance in these proceedings in a note accompanying the s34 agreement. The note explained how jurisdictional matters have been satisfied. In regard to jurisdiction, I note the following:
The development is permissible within the R3 Medium Density Residential Zone under the provisions of Appendix 12 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SRGC SEPP).
The requirements of cl 30(2) of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) are met in that the Applicants’ architect has prepared a Design Verification Statement in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000. The Design Verification Statement is referred to in Condition 3 of the conditions of consent. For the purposes of cll 143A and 154A of the Environmental Planning and Assessment Regulation 2000, compliance with SEPP 65 is required.
In accordance with cl 7 (1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) a Stage 2 Contamination Assessment was prepared that outlines that the site is suitable for the proposed development. I am satisfied in this regard noting the inclusion of reference to the relevant report in the consent conditions.
The application has been notified in accordance with the relevant development control plan and the submissions have been considered, in particular the concerns of the objector at 14 and 28 Clarke Street Riverstone in regard to road levels.
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I also note that there is a non-compliance with a development standard contained in SRGC SEPP. Clause 4.3 of Appendix 12 of SRGC SEPP assigns a maximum building height of 12m for the subject site. Certain building elements exceed this height, more particularly certain lift overruns and stair access to rooftops.
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The applicant seeks a variation to this development standard and has lodged a written request pursuant to cl 4.6 of Appendix 12 of SRGC SEPP, prepared by Think Planners Pty Ltd and dated June 2019. The Council is satisfied that the written request satisfies the requirements established in cl 4.6. I have reviewed the written request and I am also satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions of cl 4.6(4)(a)(i) of Appendix 12 of SRGC SEPP for the following reasons (using the findings established in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 for decision framing purposes):
The written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. This has occurred through demonstrating that compliance with the objectives of the standard has been achieved, notwithstanding the non-compliance. Specifically, it was indicated that the generally apparent building height would be aligned with the standard, including in regard to physical and visual potential impacts. This was due to the fact that lift overruns and stair cores where located towards the middle of buildings and the generally minor height exceedance involved.
The written request has also adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. This is through its indication that the (relatively minor) height exceedance, itself associated with development utility, is required to meet design quality and density expectations which are associated with housing demand.
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In regard to cl 4.6(4)(a)(ii) of Appendix 12 of SRGC SEPP, I am also directly satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. I rely on the written submission in regard to the consistency with the objectives of the development standard (see above). In regard to the R3 zone objectives I note the proposal as a particular means of meeting housing needs.
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In regard to cl 4.6(4)(b) of Appendix 12 of SRGC SEPP, it is my view that that matter does not raise any matters of State or regional significance in planning terms, and as such this provision does not concern me in regard to this proposal.
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Finally, I note that the application is generally compliant with the Blacktown City Council Growth Centre Precincts Development Control Plan (DCP) which applies, particularly with the maintenance of the setback controls contained in cl 4.3.5 and any non-compliances with the setback control are de minimus and acceptable.
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I have relevantly affirmed the advice of the parties with respect to the above and 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. 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. I note that I have had no direct regard to the merits of the application in coming to this position.
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The Court orders:
Leave is granted to the Applicants to rely upon the amended plans and documents listed in condition 3 of the Conditions of Consent.
The Applicant’s written request pursuant to clause 4.6 of Part 4 of Appendix 12 of the SEPP (Sydney Region Growth Centres) 2006 (SRGC SEPP) seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of Part 4 of Appendix 12 of the SRGC SEPP prepared by Think Planners Pty Ltd dated June 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the SRGC SEPP. Consequently, the Applicants’ written request is well founded and is upheld.
The appeal is upheld.
Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicants’ are to pay those costs of the respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed.
Development Application No SPP/17/00037 seeking consent for a 4-staged development comprising the following:
Stage 1:- Torrens title subdivision of 1 lot into 2 super lots and one Drainage Reserve (lot 3) and civil works consisting of construction of roads, footpaths and temporary access road and footpath through Stage 4.
Stage 2:- Construction of basement Stage 2 and residential apartment buildings A, B, C and D.
Stage 3:- Construction of basement Stage 3 and residential apartment building E.
Stage 4:- Construction of Basement stage 4 and residential apartment buildings F, G and H;
is approved subject to conditions annexed hereto and marked “A”.
……………………….
Peter Walsh
Commissioner of the Court
Annexure A (724 KB, pdf)
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Decision last updated: 31 July 2019
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