Universal Property Group Pty Ltd v Blacktown City Council

[2021] NSWLEC 1346

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1346

Hearing dates:

Conciliation conference on 7 June 2021

Date of orders:

15 June 2021

Decision date:

15 June 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See Orders at [28]

Catchwords:

DEVELOPMENT APPLICATION – construction of residential flat buildings – height standard exceedance – request to vary standard – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30, Schedule 1

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 2.3, 4.3, 4.6

Texts Cited:

Blacktown City Council Growth Centre Precincts Development Control Plan 2018

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J McKelvey (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/376172

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA)-19-01487 by Blacktown City Council (hereafter the Council) which seeks construction of two, six storey residential flat buildings (RFB), totalling 168 apartments with basement parking, drainage and landscaping on proposed Lot 11, formed as part of a separate DA (18-00159) relating to subdivision of Lot 20 in DP 1191512 and Lot 8 and Lot 9 in DP 1245610, and is also known as 1032 - 1036 Richmond Road, Marsden Park & 230-232 Grange Avenue, Marsden Park (hereafter the site).

2. The amended Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties’ request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 June 2021, without an onsite view and via Microsoft Teams. No objectors were heard at this conciliation.

4. Based on the amended plans, to which the Court (Registrar) had previously granted leave to rely on, together with the amended DA’s supporting documents and agreed conditions of consent (Annexure A), the parties reached agreement as to the terms of a decision that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA-19-01487 with conditions.

5. Pursuant to s 34(3) of the LEC Act, 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 of the EPA Act and being satisfied, pursuant to the matters established in s 4.15(1), to grant consent to DA-19-01487, with conditions as described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth Centres); and the Blacktown City Council Growth Centre Precincts Development Control Plan 2018 (DCP).

7. The parties agree that the proposed development complies with the relevant provisions of the SEPP 55. The Council accepts that based on the Stage 1 site assessment reports that cover the site, the site is deemed suitable for the proposed development. Together with the conditions of consent, the parties are satisfied that the requirements of cl 7 of the SEPP 55 are addressed. The Court concurs, having sighted the relevant Stage 1 site assessment reports and agreed conditions of consent.

8. The proposed development, as RFB’s, is required to comply with the provisions of the SEPP 65. The amended DA is supported by a (amended) Design Verification Statement, which is sighted by the Court, and dated 8 February 2021. The parties agree that the requirements of the SEPP 65, specifically cl 30 and Schedule 1, are addressed by the amendments shown in the plans and supporting documents to the amended DA.

9. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development has been sighted and is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

10. The provisions of the SEPP Growth Centres applies to the proposed development on this site. The site is identified within the Marsden Park Precinct, as described in Appendix 12. The proposed development, within Lot 11, is zoned R3 Medium Density residential, which is permissible with consent, pursuant to cl 2.3.

11. The parties agree that the relevant provisions of the SEPP Growth Centres are addressed to their satisfaction by the supporting documents and amended plans to the amended DA under appeal. Except, the proposed development exceeds the numeric requirements of cl 4.3 (height standard) at 21 m, as described in Appendix 12.

12. It is accepted by the parties that a cl 4.6 written request seeking variation of the height standard is therefore required to be considered by the Court to grant consent to the DA, pursuant to cl 4.6 in Appendix 12 of the SEPP Growth Centres.

13. The written request for (height) variation, submitted with the amended application (and dated 3 June 2021), explains that a small portion of the proposed development exceeds the relevant height standard (21m), as specified in cl 4.3 in Appendix 12 of the SEPP Growth Centres.

14. The cl 4.6 (height) written request explains that the exceedance in the height standard relates to the lift overrun for both proposed Blocks (A and B), and does not result in a development that is out of character with the local area or perceived adversely from the streetscape. The proposed lift to the roof top terraces on each of the Blocks provides access for residents to outdoor space and provides amenity.

15. According to the cl 4.6 written request, there are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the development standard for the proposed development. The proposed development is not inconsistent with the zone objectives or the relevant development standard. The portions of the non-compliant building forms are not readily discernible in the context of the site or are out of character.

16. It is described that the proposed development satisfies the objectives of the zone and the height development standard, in the SEPP Growth Centres. As the proposed development remains in character with the local area, there are no adverse amenity impacts and relevant standard objectives are satisfied, compliance with the development standards would be both unreasonable and unnecessary.

17. The written request considers that a variation of the height development standard proscribed in cl 4.3 in Appendix 12 of the SEPP Growth Centres is therefore reasonable, and flexibility of the standard is justified.

18. Having reviewed the (cl 4.6) written request for height variation, I agree that the written request does address the requirements of cl 4.6(3) in Appendix 12 of the SEPP Growth Centres, by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The variation sought is accepted as minor (1.26m or 6% for Block A, and 1.48m or 7% for Block B), relevant to the function of the RFB’s and provides outdoor amenity to future residents. I understand there are no perceived amenity impacts to future residents on the site or to future adjoining properties resulting from the requested non-compliance.

19. Therefore, cl 4.6(4)(a)(i) in Appendix 12 of the SEPP Growth Centres is satisfied to vary the height development standard, as requested.

20. The proposed development, as described to the Court, is consistent with the objectives of the zone (cl 2.3 for R3 zone) and the height (cl 4.3) standard, as established in Appendix 12 of the SEPP Growth Centres.

21. It is accepted that the proposed non-compliance of the height standard does not result in adverse impact to the residents of the proposed development or to (future) adjoining properties or the character of the local area. There are no objectors to the proposed development. Height standard variation sought for the proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii) in Appendix 12 of the SEPP Growth Centres.

22. I accept, as described in the cl 4.6 written request, that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance. Therefore, variation of the height development standard is not inconsistent with cll 4.6(4)(b) or (5) in Appendix 12 of the SEPP Growth Centres.

23. I am satisfied that the requirements of cl 4.6 in Appendix 12 of the SEPP Growth Centres have been addressed and that a variation in the height development standard, as proposed by this application, should be granted.

24. The parties agree that the DA was publicly notified, in accordance with the DCP. During the notification period for this DA under appeal, no submissions in objection were received by Council.

25. The parties advise the Court that the amended DA has been considered in the context of the site and surrounding area. The Council advised the Court that they have undertaken the appropriate merit assessment of the amended DA, which they are satisfied the relevant provisions of the DCP are addressed. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved.

26. Based on the evidence before me, I am satisfied that there are no jurisdictional impediments to this agreement and that consent to DA-19-01487 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

27. 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.

28. The Court orders:

1. The Applicant is granted leave to amend its development application and to rely upon the following plans and documents:

Drawing No. and Revision/Issue	Title	Prepared by	Date
Architectural Plans
Drawing No: DA001 Issue 5	Cover Page	The Bathla Group	7 May 2021
Drawing No: DA002 Issue 6	Compliance Table		7 June 2021
Drawing No: DA006 Issue 4	Site Plan		31 May 2021
Drawing No: DA007 Issue 5	Basement 2 Plan		31 May 2021
Drawing No: DA008 Issue 5	Basement 1 Plan		31 May 2021
Drawing No: DA009 Issue 6	Ground Floor		31 May 2021
Drawing No: DA 009A Issue 4	Level 1 Plan		31 May 2021
Drawing No: DA 009B Issue 4	Level 2 & 3 Plan		7 June 2021
Drawing No: DA 0010 Issue 4	Level 4 Plan		7 June 2021
Drawing No: DA 010A Issue 4	Level 5 Plan		7 June 2021
Drawing No: DA 011 Issue 5	Roof Plan		31 May 2021
Drawing No: DA 014 Issue 6	Sections		31 May 2021
Drawing No: DA 015 Issue 5	Material and Finishes		31 May 2021
Drawing No: DA 016 Issue 6	Shadow Diagram		31 May 2021
Drawing No: DA 018 Issue 5	Cross Ventilation		7 June 2021
Drawing No: DA 020 Issue 6	Area-Landscape, COS & Deep S. & Site Cov		31 May 2021
Drawing No: DA 021 Issue 3	Building Height Compliance		31 May 2021
Drawing No: DA 022 Issue 4	Adaptable & Livable Units		31 May 2021
Drawing No: DA 022B Issue 4	Typical Unit 02		31 May 2021
Drawing No: DA 022C Issue 3	Typical Unit 03		31 May 2021
Drawing No: DA 024 Issue 5	4.5M HT Clearance for Garbage Truck		31 May 2021
Drawing No: WMP Issue 4	Residents Delivery Bin		31 May 2021
Landscape Plans
LPS34 21-21 Rev C Page 1	Hardscape Plan	Conzept Landscape Architects	1 June 2021
LPS34 21-21 Rev C Page 2	Deep Soil Plan		1 June 2021
LPS34 21-21 Rev C Page 3	Landscape Master Plan		1 June 2021
LPS34 21-21 Rev C Page 4	Landscape Plan 01		1 June 2021
LPS34 21-21 Rev C Page 5	Landscape Plan 02		1 June 2021
LPS34 21-21 Rev C Page 6	Landscape Plan 03		1 June 2021
LPS34 21-21 Rev C Page 7	Landscape Plan 04		1 June 2021
LPS34 21-21 Rev C Page 8	Landscape Plan 05		1 June 2021
LPS34 21-21 Rev C Page 9	Sections		1 June 2021
LPS34 21-21 Rev C Page 10	Specification & Detail		1 June 2021
LPS34 21-21 Rev C Page 11	Details		1 June 2021
Clause 4.6 Variation: Building Height		Think Planners	7 June 2021
Acoustic Report for Lots 8, 10 and 11 230 232 Grange Avenue and 1032 – 1036 Richmond Road, Marsden Park		Acoustic Logic	4 May 2021
Detailed contamination site investigation Report: 232 Grange Ave, Marsden Park, NSW		Geotesta	10 Jan 2017
Detailed contamination site investigation Report: 234 Grange Ave, Marsden Park, NSW		Geotesta	15 Jan 2017
Letter of Advice – Cross Ventilation Assessment		SLR	13 May 2021

2. The Applicant's written clause 4.6 request dated 7 June 2021 to vary the height control under clause 4.3 of Appendix 12 of the State Environmental Policy (Sydney Region Growth Centres) 2006 is upheld.

3. The appeal is upheld.

4. Development Application No. DA-19-01487, for the construction of two residential flat buildings containing 168 units and associated drainage and landscaping works on proposed Lot 11 as approved in DA 18-00159 on Lot 20 in DP 1191512 and Lot 8 and Lot 9 in DP 1245610, known as 1032 - 1036 Richmond Road, Marsden Park & 230-232 Grange Avenue Marsden Park, is approved subject to the conditions at Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (367112, pdf)

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Decision last updated: 15 June 2021