Tinesi Pty Ltd v Blacktown City Council

[2024] NSWLEC 1455

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tinesi Pty Ltd v Blacktown City Council [2024] NSWLEC 1455

Hearing dates:

Conciliation conference on 19 July 2024

Date of orders:

01 August 2024

Decision date:

01 August 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs of $15,000 within 28 days of these orders, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The Applicant’s written request, pursuant to cl 4.6 of the Blacktown Local Environmental Plan 2015 (BLEP), seeking to vary the development standard for height as set out in BLEP cl 4.3, is upheld.

(3) The appeal is upheld.

(4) Development Application DA-23-00097 for the demolition of all structures, tree removal, earthworks and construction of associated retaining walls, and construction of a 2 – 4 storey shop-top housing development containing 10 retail shops, 1 supermarket, 1 bottle shop, a medical centre and pharmacy, 64 residential units and basement parking on land described as Lots 1 to 6 in Deposited Plan DP 211530, known as 137, 139 and 141 Newton Road, Blacktown, is determined by the grant of consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – shop-top housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16 8.7, 8.15

Land and Environment Court Act 1979, s 34

Blacktown Local Environmental Plan 2015, cll 4.3, 4.6, 7.7

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, Pt 6.2, Div 2, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy 2004 (Building and Sustainability Index: BASIX)

State Environmental Planning Policy (Housing) 2021, Sch 7A, ss 8, 147

State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.6, Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Tinesi Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
K Glanville (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2023/222795

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal, by Blacktown City Council, of development application DA-23-00097. This application seeks consent for the demolition of all structures, tree removal, earthworks, and construction of a 2 - 4 storey shop-top housing development containing 10 retail shops, 1 supermarket, 1 bottle shop, a medical centre and pharmacy, 64 residential units, and basement parking, at Lots 1 to 6 of DP 211530, also known as 137, 139 and 141 Newton Road, Blacktown.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. 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 19 July 2024, and over which I presided.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points.

6. The applicant is the owner of the subject land and provided owner’s consent at the time of lodging the development application.

7. A drainage easement is required to drain water from the site across Blacktown West Public School, which adjoins the property. A letter of consent and intention to create an easement has been provided by the School Infrastructure NSW, the landowner of the site, and registration of this easement is required by a deferred condition of consent.

8. The development application was adequately notified from 8 to 22 February 2023, during which time seven submissions were received. Based on the parties’ submissions and the amended development application, I accept that the issues raised by these objectors have been considered and adequately addressed in the amended application.

9. The subject site is zoned E1 Local Centre (formerly B2) under the Blacktown Local Environmental Plan 2015 (BLEP), within which development for the purposes of commercial premises, medical centres and shop top housing is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to BLEP cl 4.3, a maximum building height of 18m applies to the south-eastern corner, and 14m to the remainder of the site. The proposed development exceeds the 18m standard to the due to a lift overrun, exhaust and plant to Building A, on the corner of Newton Road and Lancaster Street. The exceedance that results from these structures is a maximum of 0.83 metres, or 4.6%.

11. As a result of this exceedance, cl 4.6(3) of the BLEP allows the applicant to request a contravention of this development standard through the submission of a written request. This request must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicant has submitted a written request prepared by DFP Planning Consultants, dated March 2024 (the cl 4.6 request).

1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the E1 Local Centre zone and the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity or views of adjoining properties due to its position on the site and building, and it being minor in nature.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The breach is the result of the existing topography of the site.

2. The breach of building height is minor in nature. It has been assessed in terms of environmental impacts and it does not result in any additional overshadowing, privacy, visual or traffic impacts on surrounding land.

3. The contravention is therefore justified by a lack of adverse impact on the neighbouring residents and by the breach of the standard being minor in nature.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

12. No maximum floor space ratio applies to the site pursuant to BLEP cl 4.4, and the site is not classified as a heritage item nor located within a Heritage Conservation Area pursuant to BLEP cl 5.10.

13. Pursuant to BLEP cl 7.7, development consent must not be granted to development unless the consent authority considers that the development exhibits design excellence. In support of this consideration, the applicant has provided a Design Report and SEPP 65 Compliance document, as well as a supplementary Statement of Environmental Effects (Supplementary SEE) that assesses the development against the matters listed in cl 7.7(4). From this I accept the parties’ submission that the application as amended exhibits design excellence.

14. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) provides for the clearing of vegetation in non-rural areas. The proposed development, as amended, seeks the removal of 37 trees which are assessed in the Arboricultural Impact Assessment by Hugh the Arborist dated 19 April 2024. From this and from the parties’ submission, I accept that the removal of these trees and proposed replacement planting is acceptable subject to the relevant conditions in the agreed conditions of consent.

15. As the site is located within the Hawkesbury – Nepean Catchment, Ch 6 of the B&C SEPP applies to the site. Based on the information contained in the supplementary SEE, the Stormwater Management and Erosion and Sediment Control Plans, prepared by S&G Consultants, the agreed conditions of consent, and the parties’ submissions, I accept that the matters identified in Pt 6.2, Div 2 have been considered in the assessment of this application, and that:

1. The effect of the development on the quality of water entering a waterway will be neutral or beneficial (s 6.6).

2. The development will not have an adverse impact on terrestrial, aquatic, or migratory animals or vegetation, nor on aquatic reserves as the site does not discharge to any creeks, waterways, riparian corridors or foreshores (s 6.7).

3. The site is not identified as flood liable land (s 6.8).

4. The development has no impact on access to recreational land uses or foreshores (s 6.9).

5. The development will not have any environmental impact on any adjacent local government area (s 6.10).

16. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004. Compliance with the commitments within this certificate is further required through a condition of consent.

17. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Preliminary Site Investigation by Martens Consulting Engineers, dated December 2022, and the parties’ submission, I accept that the subject site can be made suitable for the intended use, subject to conditions 1.8, 3.5.1 and 3.5.2 of the agreed conditions of consent.

18. The development proposes to display signage and subsequently, s 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) applies. Based on the parties’ submission and the information contained in the supplementary SEE, I accept that the proposed signage is consistent with the aims and objectives set out in s 3.1 and the assessment criteria set out in Sch 5 of the SEPP IE.

19. Pursuant to the savings provision at s 8(2A) of Sch 7A of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), this SEPP applies to the site. Section 147 of the Housing SEPP provides that development consent must not be granted unless the consent authority has considered the quality of the design against: the principles set out in Sch 9 of the Housing SEPP; the Apartment Design Guide (ADG); and any advice received from a design review panel within 14 days after the consent authority referred the DA to the panel. Based on the assessment provided in the Design Report and SEPP 65 Compliance document, the Supplementary SEE and the parties’ submissions, I accept that the development as amended is consistent with the relevant principles of Sch 9 of the Housing SEPP and of the ADG. I further accept that the application was not referred to a design review panel.

20. For these reasons, 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.

21. 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.

22. The Court notes:

1. Council, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA-23-00097, in accordance with the below documentation:

Document

Date

Mixed Use acoustic assessment prepared by GHD (Rev 1)

12 March 2024

Arboricultural Impact Assessment prepared by Hugh the Arborist (Rev 5)

19 April 2024

Design Report & SEPP 65 Compliance Report prepared by MOAA Architecture

12 March 2024

Amended architectural Drawings prepared by MOAA Architecture:

9 March 2024

(a) Cover Sheet, Dwg No. DA0001   

(b) BASIX Commitments, Dwg No. DA0002

(c) Context/Site Analysis, Dwg No. DA0010   

(d) Demolition Plan, Dwg No. DA0011   

(e) Basement 2 Plan, Dwg No. DA0101

(f) Basement 1 Plan, Dwg No. DA0102

(g) Ground Floor Plan, Dwg No. DA0103

(h) Level 1 Plan, Dwg No. DA0104

(i) Level 2 Plan, Dwg No. DA0105

(j) Level 3 Plan, Dwg No. DA0106

(k) Level 4 Plan, Dwg No. DA0107

(l) Roof Plan, Dwg No. DA0108

(m) North/South Elevations, Dwg No. DA0201

(n) East/West Elevations, Dwg No. DA0202

(o) Streetscape Elevations, Dwg No. DA0203

(p) Sections Sheet 1, Dwg No. DA0301

(q) Sections Sheet 2, Dwg No. DA0302

(r) Sections Sheet 3, Dwg No. DA0303

(s) Section Sheet 4, Dwg No. DA0304

(t) Section Sheet 5, Dwg No. DA0305

(u) Shadow Diagrams, Dwg No. DA0401   

(v) Sun’s Eye View Diagrams, Dwg No. DA0402

(w) Area Calculations, Dwg No. DA0501

(x) Solar Access Diagrams, Dwg No. DA0501A

(y) Cross Ventilation Diagrams, Dwg No. DA0501B

(z) Storage-Solar- Ventilation, Calc. Dwg No. DA0502

(aa) Height,   Dwg No. DA0503   

(ab) Typical pre & post adaptable unit, Dwg No. DA504

(ac) Pre & post adaptable Unit Sheet 2, Dwg No. DA505

(ad) Signage, Dwg No. DA0600

(ae) Podium Canopy Details Dwg No. DA0601

(af) 3D Views, Dwg No. DA0701

(ag) 3D Views, Dwg No. DA0702

(ah) 3D Views, Dwg No. DA0703

NCC Section J Assessment Report ref 116541 rev 5 prepared by Jensen Hughes

15 March 2024

BASIX Obligation Report ref 116541 prepared by Jensen Hughes

14 March 2024

BASIX Certificate 1361212M_03

12 March 2024

NatHERS Certificate #HR-1B8ZVW-03

12 March 2024

Engineering plans prepared by S&G Consultants:

15 March 2024

(a) Cover sheet, Plan No. C100 rev D

(b) Public Domain – Civil Works – Specification Sheet, Plan No. C101 rev D

(c) Public Domain – Civil Works – General Arrangement Plan No. C201 rev D

(d) Public Domain – Civil Works – Details Sheet Plan No. C201 rev D

Landscape plans prepared by Place Logic:

(a) Landscape plan Ground Floor, Plan No. L301.1 rev H dated 15 March 2024

(b) Landscape plan Level-1 & Rooftop, Plan No. L301.2 rev H dated 20 March 2024

(c) Ground Floor Planting Palette, Plan No. L302.1 rev A dated 5 March 2024

(d) Level 1 Planting Palette, Plan No. L302.2 rev A dated 5 March 2024

(e) Precedents + Materials Palette, Plan No L302.3 Rev A dated 5 March 2024

(f) Landscape Schedules and Typical Details, Plan No. L303 rev F dated 12 March 2024

Stormwater Plans prepared by S&G Consultants:

15 March 2024

(a) Cover Sheet Dwg. No. SW 100 Rev E

(b) Stormwater Concept Design - Basement 2 Plan Dwg. No. SW 200 Rev E

(c) Stormwater Concept Design – Ground Floor Plan Dwg. No. SW 201 Rev E

(d) Stormwater Concept Design – Easements Plan Dwg. No. SW 202 Rev E

(e) Stormwater Concept Design – Level 1 Plan Dwg. No. SW 203 Rev E

(f) Stormwater Concept Design – Roof Plan Dwg. No. SW 204 Rev E

(g) Stormwater Concept Design – Details Sheet 1 of 2 Dwg. No. SW 300 Rev E

(h) Stormwater Concept Design – Details Sheet 2 of 2 Dwg. No. SW 301 Rev E

(i) Erosion And Sediment Control – Plan Sheet 1 of 2 Dwg. No. SW 400 Rev E

(j) Erosion And Sediment Control - Details Sheet 2 of 2 Dwg. No. SW 401 Rev E

(k) Stormwater Concept Design - Music Catchment Plan Dwg. No. SW 500 Rev E

(l) Stormwater Concept Design - OSD Catchment Plan Dwg. No. SW 501 Rev E

Access Report (DA stage) ref 116541 rev r3 prepared by Jensen Hughes

13 March 2024

Traffic Impact Assessment ref 22197 Issue L prepared by Transport and Traffic Planning Associates

March 2024

Proposed Median (Lancaster Street)

Amended Waste Management Plan ref 22197 prepared by Dicken Solutions

March 2024

BCA Assessment Report ref 116541 Rev 03 prepared by Jensen Hughes

15 March 2024

Construction Management Plan ref CMP22.0003 prepared by Archi-QS

15 March 2024

Owners Consent concerning maintenance of Tree 1

10 May 2024

Registered Quantity Surveyors Detailed Cost Report Prepared by Archi-QS, No. DCR24.0007 Rev 2

15 March 2024

Loading Dock Management Plan prepared by DFP Planning No 9460B Rev 1

February 2024

Operational Plan of Management prepared by DFP Planning Ref 9460B Rev 2

December 2022

Clause 4.6 Variation report prepared by DFP Planning Ref 9460B Rev 2

March 2024

Supplementary Statement of Environmental Effects prepared by DFP Planning Ref 9460B Rev 2

March 2024

23. The Court orders:

1. The Applicant is to pay the Respondent’s costs of $15,000 within 28 days of these orders, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The Applicant’s written request, pursuant to cl 4.6 of the Blacktown Local Environmental Plan 2015 (BLEP), seeking to vary the development standard for height as set out in BLEP cl 4.3, is upheld.

3. The appeal is upheld.

4. Development Application DA-23-00097 for the demolition of all structures, tree removal, earthworks and construction of associated retaining walls, and construction of a 2 – 4 storey shop-top housing development containing 10 retail shops, 1 supermarket, 1 bottle shop, a medical centre and pharmacy, 64 residential units and basement parking on land described as Lots 1 to 6 in Deposited Plan DP 211530, known as 137, 139 and 141 Newton Road, Blacktown, is determined by the grant of consent, subject to the conditions set out in Annexure “A”.

E Washington

Acting Commissioner of the Court

Annexure A

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Decision last updated: 01 August 2024