Restifa and Partners Pty Ltd v Blacktown City Council

[2019] NSWLEC 1432

Land and Environment Court

New South Wales

Medium Neutral Citation:	Restifa & Partners Pty Ltd v Blacktown City Council [2019] NSWLEC 1432
Hearing dates:	Conciliation conference on 20 August 2019
Date of orders:	18 September 2019
Decision date:	18 September 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   Leave is granted for the Applicant to rely on the amended plans, drawings and material listed at Annexure A and referred to in part in the conditions of consent at Annexure C; (2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed. (3)   The Amended Clause 4.6 variation application in relation to the height of buildings development standard contained in Clause 4.3 of the SEPP and annexed to this agreement as Annexure B is upheld. (4)   The appeal is upheld. (5)   Development Application No. SPP-17-00039 (as amended) for: (a)   A concept plan for residential and retail uses, building envelopes, public domain elements, landscaping, roads, car parking and associated infrastructure; (b)   Torrens title subdivision of two existing lots to create two allotments for residential development, two lots for mixed use development, two lots for the village squares and one lot for public roads; (c)   Road and infrastructure works to create new public roads; and (d)   Stage 1 development for the construction of residential flat buildings containing 256 apartments with associated car parking, with 111 apartments at a maximum of 8 storeys on proposed Lot 1, and 145 apartments at a maximum of 8 storeys on proposed Lot 2, on Lots 72 and 73 in Deposited Plan 208203, otherwise known as 43 & 53 Cudgegong Road, Rouse Hill, is approved subject to the conditions which are behind Annexure ‘C’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders – concept development
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited:	Blacktown Development Control Plan 2015
Category:	Principal judgment
Parties:	Restifa & Partners Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: B Salon, (Solicitor) (Applicant) D Loether, (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	2018/139608
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) SPP-17-00039 by Blacktown City Council (hereafter the Council) for a concept plan development application of residential and retail uses with associated infrastructure and services, Torrens title subdivision (of two lots into seven lots), and Stage 1 development being for the construction of residential flat buildings for 256 apartments with parking on Lots 72 and 73 DP 208203, also known as 43 to 53 Cudgegong Road, Rouse Hill (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979), for the DA made pursuant to s 4.22.

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 20 August 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation.

4. At the conciliation conference, the applicant sought to amend the plans. Based on these amended plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA SPP-17-00039 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA SPP-17-00039 under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP); State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65); and Blacktown Development Control Plan 2015 (BDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

7. The parties agree that the relevant provisions of the Growth Centres SEPP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within a B2 Local Centre zone (Lot 72) and B3 Mixed Use zone (Lot 73). The proposed residential and mixed use development is permissible in the respective zones and as proposed is not inconsistent with the zones objectives or relevant development standards.

8. The parties agree that the requirements of the SEPP 65 and BDCP are complied with based on the amended plans and conditions of consent, which are consistent with the relevant studies undertaken to support the DA. The site is currently vacant, and the proposed development satisfies the amenity and street activation requirements.

9. Based on the amended plans and supporting documents to the DA, the contentions are resolved to the satisfaction of the parties. The requirements of transport authorities for concurrence are addressed in the conditions of consent.

10. I am satisfied that there are no jurisdictional impediments to this agreement and that DA SPP-17-00039 should be granted based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979.

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 1979 to dispose of the proceedings in accordance with the parties' decision.

12. The Court orders:

1. Leave is granted for the Applicant to rely on the amended plans, drawings and material listed at Annexure A and referred to in part in the conditions of consent at Annexure C;

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

3. The Amended Clause 4.6 variation application in relation to the height of buildings development standard contained in Clause 4.3 of the SEPP and annexed to this agreement as Annexure B is upheld.

4. The appeal is upheld.

5. Development Application No. SPP-17-00039 (as amended) for:

1. A concept plan for residential and retail uses, building envelopes, public domain elements, landscaping, roads, car parking and associated infrastructure;

2. Torrens title subdivision of two existing lots to create two allotments for residential development, two lots for mixed use development, two lots for the village squares and one lot for public roads;

3. Road and infrastructure works to create new public roads; and

4. Stage 1 development for the construction of residential flat buildings containing 256 apartments with associated car parking, with 111 apartments at a maximum of 8 storeys on proposed Lot 1, and 145 apartments at a maximum of 8 storeys on proposed Lot 2, on Lots 72 and 73 in Deposited Plan 208203, otherwise known as 43 & 53 Cudgegong Road, Rouse Hill, is approved subject to the conditions which are behind Annexure ‘C’.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (324 KB)

Annexure B (1.09 MB)

Annexure C (696 KB)

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Decision last updated: 18 September 2019