Universal Property Group Pty Limited v Blacktown City Council

[2020] NSWLEC 1204

Land and Environment Court

New South Wales

Medium Neutral Citation:	Universal Property Group Pty Limited v Blacktown City Council [2020] NSWLEC 1204
Hearing dates:	Conciliation conference on 1 May 2020
Date of orders:	06 May 2020
Decision date:	06 May 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court Orders: (1) The Applicant’s written request, dated 6 March 2020 prepared by GLN Planning, 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. (2) The appeal is upheld. (3) Development Application No. DA-18-02284, for the construction of a Residential Flat Building comprising of 88 apartments and associated works including access driveways to basement car parks, stormwater drainage and landscaping on proposed Lot 1 in the proposed subdivision of Lot 94 DP 208203 approved under DA-18-02215, is approved in accordance with the conditions set out in Annexure 'A'.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Universal Property Group Pty Limited (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: E Fleming (Solicitor) (Applicant) D Loether (Solicitor) (Respondent)   Solicitors: Swaab (Applicant) Bartier Perry (Respondent)
File Number(s):	2019/23837
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Blacktown City Council's deemed refusal of development application DA-18-02284 (‘DA’).

2. The Applicant seeks consent for the construction of a four storey residential flat building (‘RFB’) comprising 88 apartments and associated works including access driveways to basement car parks, stormwater drainage and landscaping. The site is Lot 1 in the proposed subdivision of Lot 94 DP 208203, approved under DA-18-02215. Lot 94 is also known as 140 Guntawong Road Riverstone, and the site is located within the Riverstone East Precinct of Sydney’s North West Growth Area.

3. The provisions of State Environment Planning Policy (Sydney Region Growth Centres) 2006 (‘SEPP GC’) apply to the site. Under cl 7 of SEPP Growth Centres the provisions of Appendix 12 known as “Blacktown Growth Centres Precinct Plan” (‘BGC Precinct Plan’) apply to the application.

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 1 May 2020. At the conciliation conference, and after leave had been earlier sought and granted for amending plans, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. 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.

7. 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 certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, noting this advice, I find that:

• Having regard to notification requirements and requirements for a consent authority to take into consideration any submissions made, I am advised that the application was placed on notification between 14-28 January 2019 and that no public submissions were received. Submissions from responding public authorities have been considered.

• Having regard to the BGC Precinct Plan (Appendix 12 of SEPP GC):

The proposal is permissible, with the zoning of the major portion of the site falling within R3 Medium Density Residential zone in which RFBs are permissible. The proposal is also permissible in the portion of the site falling within the R2 Low Density Residential zone under cl 5.3 of the BGC Precinct Plan (relating to development near zone boundaries).

The proposal conforms with relevant development standards in the BGC Precinct Plan with the exception of that for height of buildings (cl 4.3), which is considered below.

Having regard to cl 6.1(1), based on the advice of the parties as to its status, I am satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.

• Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land ('SEPP 55'), consideration has been given as to whether the subject site is contaminated. I am advised that a Contamination Site Investigation Report prepared by Geotesta Pty Ltd dated 3 September 2018 accompanied the application. The report concludes that the site is suitable for the proposed development, subject to the recommendations provided in the report. A consent condition requires that the recommendations of the report be implemented (Condition 8.5).

• Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development ('SEPP 65'), the design quality of the development when evaluated in accordance with the design quality principles (Schedule 1 of SEPP 65) has been taken into consideration, including with reference to the Apartment Design Guide. The Applicant has filed a Design Verification Statement in accord with the requirements of cll 50(1AB) and 50(1A) of the Environmental Planning and Assessment Regulation 2000. I have considered Council’s advice and agree that the proposal satisfies SEPP 65-related requirements.

8. There are permissive powers in cl 4.6(2) to grant development consent for a development that contravenes the height of buildings development standard. However the powers are subject to conditions.

9. To open the gate to these permissive powers, the applicant has filed a written request (dated 6 March 2020 prepared by GLN Planning) under cl 4.6(3) of the BGC Precinct Plan seeking to justify the contravention of the development standard at cl 4.3 relating to height of buildings.

10. The height standard under cl 4.3 is 12m. According to the plans, the height contravention is brought about by the lift overrun, architectural elements of the roof structure including parapets, inset planter walls and small structures associated with the rooftop communal areas. The exceedance ranges from 0.05m to 2.6m, with three lift overruns providing the major exceedance.

11. I have considered the written request. I am satisfied that it demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a)). This is because the written request shows how, otherwise, the development minimises visual impact, protects amenity of adjoining development and land in terms of solar access and open space; and thus results in the achievement of the relevant objective of cl 4.3 in any event.

12. I am also satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b)). This is through demonstrating how the more significant height standard contravention (in regard to lift overruns) is related to providing equitable access to roof top communal open space, and how the minor contraventions are related to enhanced building appearance and provisioning of communal facilities.

13. I have considered the proposal’s consistency with the relevant objectives of the zones, and find consistency. For land in the R3 zone, this is because the proposal provides for housing needs, including with a variety of housing types, within a medium density residential setting. For the small area of land within the R2 zone included as part of the development (due to the irregular alignment of zone boundaries), I find consistency because the proposal is not antipathetic to the objective of providing housing needs within a low density residential environment.

14. I am satisfied that the proposed development is in the public interest because it is consistent with: (1) the objectives for development within the zones (for the reasons outlined directly above) and (2) the objectives of the height standard (because I agree with the reasons outlined in the written request). Therefore I am satisfied with regard to cl 4.6(4)(a)(ii) of the BGC Precinct Plan.

15. Turning to cl 4.6(4)(b), I am satisfied the proposal does not raise any matter of significance for State or regional environmental planning.

16. The states of satisfaction required by cl 4.6 of the BGC Precinct Plan have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

17. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and 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. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. 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.

19. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

20. The Court orders:

1. The Applicant’s written request, dated 6 March 2020 prepared by GLN Planning, 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.

2. The appeal is upheld.

3. Development Application No. DA-18-02284, for the construction of a Residential Flat Building comprising of 88 apartments and associated works including access driveways to basement car parks, stormwater drainage and landscaping on proposed Lot 1 in the proposed subdivision of Lot 94 DP 208203 approved under DA-18-02215, is approved in accordance with the conditions set out in Annexure 'A'.

…………………………

P Walsh

Commissioner of the Court

Annexure A (204 KB)

Plans Part 1 (8.16 MB)

Plans Part 2 (7.67 MB)

Plans Part 3 (10.3 MB)

Plans Part 4 (8.81 MB)

Plans Part 5 (9.15 MB)

Plans Part 6 (4.89 MB)

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Decision last updated: 07 May 2020