NAVH Pty Ltd v Blacktown City Council

[2019] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation:	NAVH Pty Ltd v Blacktown City Council [2019] NSWLEC 1179
Hearing dates:	Conciliation conference on 22 March 2019
Date of orders:	09 April 2019
Decision date:	16 April 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See [24] below
Catchwords:	DEVELOPMENT APPEAL against deemed refusal - conciliation conference – subdivision – residential apartment development – agreement between the parties – orders
Legislation Cited:	Blacktown Local Environment Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Category:	Principal judgment
Parties:	NAVH Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Solicitors: J Ayas, Madison Marcus (Applicant) D Loether, Bartier Perry (Respondent)
File Number(s):	2018/175633
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No SPP-17-00036 for demolition of existing structures, tree removal, Torrens title subdivisions in to 1 super lot (Lot 1) and 1 residue lot (Lot 2) and new public roads, construction of 3 x 4 storey residential flat buildings on Lot 1 with 2 levels of basement car parking, and construction of local roads, drainage and associated landscape works on the land at 22 Grange Avenue, Marsden Park.

2. 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 22 March 2019. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 March 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, including a written request prepared by Think Planners pursuant to cl 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) seeking a variation of the development standard for the height of buildings set out in cl 4.3 of the Growth Centres SEPP. The parties explained to me during the conference as to how the requirements of the Growth Centres SEPP have been satisfied in order to allow the Court to make the orders that follow below.

The site and its context

6. The site is identified as Lot 23 Section K in DP 193074, located at 220 Grange Avenue, Marsden Park and is set with a large semi-rural area that is surrounded by a mix of rural and semi-rural land parcels.

Statutory controls

7. The site is partly zoned R2 Low Density Residential and R3 Medium Density Residential under the provisions of the Growth Centres SEPP, and is located in the Marsden Park Precinct to which the provisions of Appendix 12 of the Blacktown Growth Centres Precinct Plan apply. As the site is within the area identified as the Sydney Region Growth Centres, the Blacktown Local Environment Plan 2015 does not apply.

8. As the proposed development is a residential apartment development, the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development apply. I am satisfied that a design verification statement has been prepared by a qualified designer, Architect Sam Min-Han Lu Reg. No. 8842, and in a form that is consistent with cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000.

9. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the site. I am satisfied that a Stage 2 Contamination Assessment and Remediation Action Plan concludes that the site can be made suitable for the development upon completion of Remediation works, in accordance with cl 7(1) of the SEPP 55.

Written request to vary development standard

10. As the site is located between zones for the purposes of the height of buildings, it is relevant that the height of buildings development standard applicable to the portion of the site on which the development is proposed is 14m. The numerical exceedance of the proposed development is, respectively, 1.7m (Building A), 1.8m (Building B), and 2m (Building C).

11. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Think Planning, dated 28 February 2019.

12. Clause 4.6(4) of Appendix 12 of the Growth Centres SEPP establishes certain preconditions that must be satisfied before the Court, exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 [13] (“Initial Action”)). A consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters contained in cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the zone, and the relevant development standard, as stated at cl 4.6, as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

The applicant’s written request

13. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters found in cl 4.6(3), including:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

14. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Initial Action [17]-[21], as follows:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary.

15. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the zone and development standard are achieved notwithstanding non-compliance with the numerical standard.

16. The applicant must satisfy the Court that there are sufficient environmental planning grounds to justify contravening the development standard in the written request under cl 4.6. The environmental planning grounds relied upon must focus on the particular aspect or element of the development that contravenes the development standard itself, and not the carrying out the development as a whole (Initial Action [24]).

17. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as follows:

1. The lift core and fire stairs provide access to a communal open space located on the roof top as an appropriate response to the increased amenity afforded to the future residents of the development by the provision of the garden and common open space area added to the rooftop, and the extension of the lift core and shade structures will not be visible from the public domain at street level.

2. The applicant notes that the exceedance is limited to non-habitable portions of the building.

3. The extent of non-compliance could be substantially reduced with the removal of the common open space at the rooftop level, however this would result in a poor planning outcome.

18. I am satisfied that justifying the aspect of the development that contravenes the development standard on this basis can be properly described as an environmental planning ground within the meaning identified by Preston CJ in Initial Action [23].

Whether the proposal is in the public interest

19. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives.

20. I am satisfied that the proposed development will be in the public interest because:

1. It is consistent with the objectives of the height of buildings development standard.

2. The exceedance of the height of buildings development standard by the lift core, fire stair, shade structures and portions of the parapet does not result in additional adverse amenity impacts on adjoining and neighbouring development.

21. A lack of adverse amenity impacts is one way of demonstrating consistency with the objectives of a development standard (see Initial Action [94(c)]).

Conclusion

22. 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.

23. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

24. 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.

Orders

25. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend Development Application No SPP-17-00036 and to rely upon the plans and documents referred to in condition 2.1 of “Annexure A”.

2. The Clause 4.6 variation prepared by Think Planners dated 28 February 2019 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 height of buildings set out at Clause 4.3 is upheld.

3. The appeal is upheld.

4. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $10,000.00 inclusive of GST within 28 days from the date of the orders.

5. Development Application No SPP-17-00036 seeking consent for the demolition of existing structures, tree removal, Torrens title subdivision into 1 super lot (Lot 1) and 1 residue lot (Lot 2) and new public roads, construction of 3 x 4 storey residential flat buildings on Lot 1 with 2 levels of basement car parking, and construction of local roads, drainage and associated landscape works on the land at 220 Grange Avenue, Marsden Park is granted subject to the conditions of consent annexed hereto and marked “Annexure A”.

……………………….

Tim Horton

Commissioner of the Court

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Annexure A 

Landscape Plans 

Architectural Plans 

Decision last updated: 16 April 2019