Universal Property Group Pty Limited v Blacktown City Council

[2012] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Limited v Blacktown City Council [2012] NSWLEC 1271

Hearing dates:

14.09.2012; 28.09.2012

Decision date:

28 September 2012

Jurisdiction:

Class 1

Before:

Fakes C

Decision:

1. Appeal upheld

2. Development application DA-11-437 for a medium density residential development on Lot 2 in DP 1138981 and Lot 136 in DP 39285 being 39 Newhaven Avenue and 22 Sutton Street Blacktown is approved subject to conditions.

Catchwords:

DEVELOPMENT APPLICATION: medium density housing development; waste management; landscaping and amenity

Legislation Cited:

Environmental Planning & Assessment Act 1979
Blacktown Local Environmental Plan 1988

Category:

Principal judgment

Parties:

Universal Property Group Pty Limited (Applicant)
Blacktown City Council (Respondent)

Representation:

Mr I Hemmings, Barrister (Applicant)
Mr M Seymour, Barrister (Respondent)
Hunt & Hunt (Applicant)
Bartier Perry (Respondent)

File Number(s):

10542 of 2012

Judgment

This decision was given as an extemporaneous decision.

1. COMMISSIONER:This is appeal made under s 97(1) of the Environmental Planning & Assessment Act 1979 (the Act) against Blacktown City Council's deemed refusal of Development Application DA-11-437 for a medium density residential development on Lot 2 in DP 1138981 and Lot 136 in DP 39285 being 39 Newhaven Avenue and 22 Sutton Street, Blacktown.

1. The proposed development includes:

• Demolition of existing structures and trees;
• Boundary adjustment;
• Villa development comprising 14 single storey detached townhouses, garages, associated landscaping and visitor parking; and
• One-way vehicular access from Newhaven Avenue into the site and one-way egress from the site to Sutton Street.

The site and surrounding area

1. The site has a somewhat unusual configuration. It comprises a lot (Lot 136) fronting Sutton Street with dimensions similar to those of adjoining lots, and Lot 2, a long battle-axe allotment with access to Newhaven Avenue. The width of Lot 2 ranges from approximately 14m at its eastern end to about 23.3m at the western end; the length of the lot is on average about 243m. The access handle from Newhaven Avenue is approximately 9m wide and 51m deep.

1. The surrounding residential land comprises mostly 1950s-1960s single storey detached dwellings with some more recent two storey residential development.

1. There are no remaining structures on the site but there are several established trees towards the western end.

Relevant planning controls

1. The site is zoned Residential 2(a) under Blacktown Local Environmental Plan 1988 (BLEP). The proposed development is permissible with consent.

1. Blacktown Development Control Plan 2006 (BDCP) - Part A: General Guidelines, and Part C: Development in the Residential Zone, applies.

The issues

1. The contentions originally raised by council were:

• Solar access to living areas and courtyards of a number of units;
• Waste management procedures;
• Inadequate landscaping;
• Internal amenity issues arising from proximity of some car spaces and driveways to bedrooms;
• Overdevelopment of the site;
• Streetscape impacts - Sutton Street;
• Internal traffic movements in regards to emergency vehicles; and
• The public interest.

1. A joint report prepared by the parties' planners identified issues capable of resolution by way of conditions and clarified the remaining points of difference.

The hearing

1. The hearing commenced on site and a number of local residents made oral submissions. The issues raised by them include:

• Safety concerns arising from traffic exiting the site onto Sutton Street - a relatively narrow street - given the presence of two nearby schools and associated pedestrian and vehicular traffic;
• The impact of additional traffic on local and feeder roads;
• Additional demand for on-street parking;
• Noise and light spill issues;
• Stormwater disposal; and
• Access for emergency vehicles.

1. With the benefit of the site view a number of contentions were clarified and constructive discussions between the parties led to the hearing being adjourned. The applicant was granted leave to prepare amended plans and the council prepared draft conditions of consent.

1. At the resumption of the hearing, the parties agreed that there are no longer any contentions or issues that would warrant refusal of the proposed development.

1. However, in exercising the function of the Court in these matters, I must consider the relevant matters in s 79C of the Act. To this end, I was taken through the evidence relating to each of the contentions raised by council and the objectors. Each of these issues is addressed in turn.

Solar access

1. Council's original contention was that a number of units did not receive the minimum four hours of sunlight between 9am and 3pm on 21 June as specified in BDCP - Development in residential zones - cl 6.6 - Solar Access.

1. After further conferencing between the parties' planners and a more detailed consideration of the plans and revised shadow diagrams, the council's planner, Mr Turrisi, is now satisfied that all courtyards of the proposed units obtain at least 3 hours of solar access to at least 50% of their minimum area.

1. While it is agreed that there is no compliance with the numerical controls, Mr Seymour for the council submits that it brings no evidence to say that the objectives of the controls, or those of the zone, are not met.

1. Although landscaping is not considered in quantifying solar access, I note that the landscape plans show the inclusion of a small deciduous tree in the rear gardens of each of the units; this replaces the original choice of an evergreen tree - a matter raised by council's planner.

1. I agree with the parties that in the circumstances, strict compliance with the numerical controls is unnecessary and there is no reason for refusal of the proposal on this basis.

Waste management

1. The contention in this regard considered two elements - vehicular access for rubbish collection, and the distance to and from the collection point for residents at the eastern end of the development.

1. It was agreed that vehicular access is satisfactory and the distance for bin movement is not unreasonable.

1. I am satisfied that this issue has been resolved by the imposition of two conditions of consent (conditions 2.1.2 and 2.1.3). The first requires the applicant to enter into council's standard agreement for on-site collection of waste. The second provides a contingency in the event that the council's contractor no longer provides waste management services to the site.

1. I agree with the parties that this is not an issue that warrants refusal of the proposal.

Landscaping

1. Council originally contented that it had concerns with a number of elements of the landscape plan including: inadequate width of the landscape strip along the southern boundary; the choice of tree species along the access roads - particularly in regards to the clearance required by garbage trucks; and the location and dimensions of individual garden areas for each of the units.

1. Following the site view, the landscape plan has been amended to accommodate the council's concerns and others I raised during the proceedings. Specifically the landscape strip along the southern boundary has been widened and the selection of tree species modified. The council no longer presses its original contentions.

1. After reviewing the amended landscape plan I am satisfied that the issues have been addressed and that the revised plans provide greater amenity to both prospective residents of the development and to adjoining existing properties.

1. There is no reason to warrant refusal of the proposal on the basis of landscaping.

Internal amenity

1. The concerns relating to internal amenity went largely to the proximity of windows, particularly bedroom windows, to parking spaces or driveways.

1. The parties are now satisfied that these concerns are addressed by improvements to the landscape buffer strips, clarification of the nature of the windows (being in some cases windows of ensuite bathrooms), and, where necessary, acoustic treatments to some windows. Council submits that it brings no evidence of any breaches of internal amenity.

1. I am satisfied that there are no grounds for refusal on this basis.

Overdevelopment of the site

1. This is an issue raised by both the council and the objectors.

1. Mr Hemmings for the applicant submits that 'overdevelopment' implies either non-compliance with the numerical controls in the BDCP or unacceptable external impacts. In paragraph 68 of the Joint Planning Report, Mr Grech the applicant's planner, notes that the proposed development of 14 townhouses fully complies with council's density controls. In addition, the proposal meets council's requirements for on-site and visitor parking and the amended landscape plans address other concerns.

1. The applicant contends that the council raised no issues in regards to external impacts, and while some were raised by objectors, that when properly assessed there is no objective basis upon which to sustain those objections. Mr Hemmings notes that there are no overshadowing impacts or any unreasonable impacts on privacy. In addition, he contends that while the existing residents have had the benefit of backing onto open space, the rhythm of the layout of the proposed units largely matches the alignment of the existing dwellings and the resulting development should not be unexpected.

1. The council is now satisfied that the proposal meets the relevant zone objectives in BLEP for Zone Residential No 2(a), specifically:

(c)to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality,

(d)to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy.

1. The council no longer presses this contention and I am satisfied on the evidence that this issue is not one on which the proposal should be refused.

Streetscape

1. The contention in this regard related to the Sutton Street entrance. The parties agree that the issue has been addressed by changes to the plans and by imposing relevant conditions of consent.

1. I can see no reason why this matter would warrant refusal of the proposal.

Internal traffic movements

1. Council no longer raises any concerns over internal traffic movements, including any by emergency vehicles. I am satisfied that this issue has been addressed.

Public interest

1. With respect to the issues raised by the objectors and to the extent they may represent the public interest, I am satisfied that there is no evidence to support any of these issues being grounds for refusal.

1. Specifically, the parking and traffic arrangements satisfy council's requirements. While several residents discussed the potential for loss of on-street parking, I note that the proposed development accommodates visitor parking on site and that most, if not all, nearby properties have off-street parking. Council raised no issues relating to external traffic movements.

1. In regards to concerns over stormwater and overland flows from the eastern end of the site onto an adjoining property, I am satisfied that the proposal will improve the current situation. Again, council raised no specific concerns over stormwater management.

1. A number of residents, in particular the owner of the property opposite the Sutton Street exit, raised concerns over light spill. I am satisfied that while light from vehicles exiting onto Sutton Street may reach this dwelling, the configuration of the dwelling is such that the upstairs bedrooms will be unaffected and the overall impact will be minor.

Conclusions and orders

1. On the evidence before me and after consideration of the relevant matters in s 79C of the Act, I am satisfied that there are no grounds for refusal of the proposed development.

1. Therefore the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Consent is granted to Development Application DA-11-437 for the demolition of existing structures and trees, boundary adjustment, villa development comprising of a total of fourteen (14) single story detached townhouses, garages and landscaping, on Lot 2 in DP 1138981 and Lot 136 in DP 39285 being 39 Newhaven Avenue and 22 Sutton Street, Blacktown, in accordance with the amended plans dated 26 September 2012 and the agreed draft without prejudice conditions of consent as amended in Court on 28 September 2012.

(3)   The council is to file a clean copy of the agreed conditions of consent and provide the Court with an electronic Word version by close of business 2 October 2012 for inclusion with the final orders.

(4)   The applicant is to pay s 97B costs as agreed or assessed.

(5)   All exhibits are returned except exhibits A and 5.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 28 September 2012