Pandorea 88 Development Pty Ltd v Blacktown City Council

[2021] NSWLEC 1266

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pandorea 88 Development Pty Ltd v Blacktown City Council [2021] NSWLEC 1266

Hearing dates:

Conciliation conference held on 14 April 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Modification Application No. MOD-20-00403 to modify Development Consent No JRPP-16-03331 granted by the Land and Environment Court in case number 2017/00069585 for the modification of the external facades of the residential flat buildings at Lot 7 in Deposited Plan 1223464, known as No. 41 Manchester Drive, Schofields is determined by approving the modifications as set out in Annexure ‘A’.

(3) The Applicant is granted leave to rely on the following amended plans:

(a) Elevations – North and South (Drawing No 16G-015 Revision H) prepared by ALAND dated 20 April 2021.

(b) Elevations – East & West (Drawing No 16G-016 Revision H) prepared by ALAND dated 20 April 2021.

(c) Materials and Finishes (Drawing No 16G-017 Revision F) prepared by ALAND dated 20 April 2021.

(4) As a consequence of order (2) above, Development Consent No JRPP-16-03331 granted by the Land and Environment Court in case number 2017/00069585 is now subject to the consolidated, modified conditions of development consent set out in 'Annexure B'.

Catchwords:

MODIFICATION OF CONSENT – building appearance – visual interest – variety in streetscape – conciliation conference – agreement between parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.56, 8.9

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy

Category:

Principal judgment

Parties:

Pandorea 88 Development Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
McCabe Curwood (Applicant)
Bartier Perry Pty Ltd (Respondent)

File Number(s):

2020/346800

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application No. MOD-20-00403. The application sought to modify Development Consent JRPP-16-03331 (consent) approved by this Court.

2. That consent was granted on 18 August 2017 and authorises the erection of 2 residential flat buildings containing 137 units and incorporating basement car parking, stormwater work and landscaping works on land that is now described at Lot 7 DP 1223464 and known as No 41 Manchester Drive, Schofields.

3. The Modification Application seeks approval to modify Condition 2.1.1 to amend the building elevations, colours and materials of the residential flat buildings approved under the consent.

4. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 April 2021. I presided over the conciliation conference.

5. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, the matter was conducted by Microsoft Teams and no site view was undertaken.

6. 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. The agreement involves the Court upholding the appeal and modifying the consent to allow for the use of different colours and materials and to alter the facades of the building. The applicant had revised both the plans and material schedule to address the concerns of the Council as articulated in the Statement of Facts and Contentions filed on 19 February 2021.

7. 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 4.56 of the EPA Act to modify the consent.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, the Parties agree, and I am satisfied, that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified, as required pursuant to the provisions of s 4.56(1)(a) of the EPA Act.

10. The modified development would be consistent with all relevant provisions of the R3 Medium Density Residential Zone under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and the design quality principles under State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development.

11. 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.

12. The Court orders that:

1. The appeal is upheld;

2. Modification Application No. MOD-20-00403 to modify Development Consent No JRPP-16-03331 granted by the Land and Environment Court in case number 2017/00069585 for the modification of the external facades of the residential flat buildings at Lot 7 in Deposited Plan 1223464, known as No. 41 Manchester Drive, Schofields is determined by approving the modifications as set out in Annexure ‘A’.

3. The Applicant is granted leave to rely on the following amended plans:

1. Elevations – North and South (Drawing No 16G-015 Revision H) prepared by ALAND dated 20 April 2021.

2. Elevations – East & West (Drawing No 16G-016 Revision H) prepared by ALAND dated 20 April 2021.

3. Materials and Finishes (Drawing No 16G-017 Revision F) prepared by ALAND dated 20 April 2021.

4. As a consequence of order (2) above, Development Consent No JRPP-16-03331 granted by the Land and Environment Court in case number 2017/00069585 is now subject to the consolidated, modified conditions of development consent set out in 'Annexure B'.

………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (88751, pdf)

Annexure B (428357, pdf)

Plans (25768368, pdf)

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Decision last updated: 21 May 2021