Universal Property Group Pty Ltd v Blacktown City Council

[2021] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1104

Hearing dates:

Conciliation conference on 22 February 2021

Date of orders:

26 February 2021

Decision date:

26 February 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA-19-01298, as amended, for the demolition of an existing dwelling and associated outbuildings, removal of existing vegetation and trees, Torrens title subdivision into 2 lots, construction of a new 72 unit residential flat building with basement car parking, communal open space and public landscaping on proposed Lot 1 and stormwater drainage on Lot 5 in Deposited Plan 1206952 otherwise known as 137 South Street Marsden Park NSW 2765is approved subject to the conditions included at Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Sydney Regional Growth Centres) 2006

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

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Sydney Regional Environmental Plan No 20— Hawkesbury-Nepean River (No 1—1997)

Texts Cited:

Apartment Design Guide

Marsden Park Industrial Precinct Plan

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
M Staunton (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2019/342396

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of development application no DA-19-01298 for the demolition of the existing dwelling house and associated outbuildings, removal of existing vegetation and trees and construction of a new 72 unit residential flat building with basement car parking, communal open space and public landscaping and stormwater drainage (the Proposed Development) at 137 South Street, Marsden Park legal described as Lot 5 in Deposited Plan 1206952 (the Site).

2. The matter was originally listed for hearing on 22 and 23 February 2021, however, after leave was granted to the Applicant to rely on amended plans on 17 February 2021 the parties sought to have the matter listed for a conciliation conference. 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 22 February 2021. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. 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 to be as set out in the following subparagraphs and I have included my reasons for satisfaction as follows:

1. The development of the Site is controlled by the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The Site is situated within the Marsden Park Industrial Precinct and the provisions of Appendix 5 to the Growth Centres SEPP titled Marsden Park Industrial Precinct Plan apply (MPP). Under the MPP, the majority of the Site is zoned R3 Medium Density Residential and contains a relatively small portion of land within the E2 Environmental Conservation Zone.

2. The proposed residential flat building development is permissible with consent in the R3 Zone but is prohibited development in the E2 zoned land. The Proposed Development has the proposed residential flat building only within the R3 zone.

3. Clause 5.9 of the MPP deals with Preservation of trees or vegetation and I am satisfied that consent is sought for the removal of existing vegetation on the Site. Consent condition 8.2 provides a condition that any tree not approved for removal shall be effectively protected against damage.

4. The Proposed Development complies with the MPP thresholds prescribed in cl 4.1AB Minimum subdivision lot size, cl 4.3 Height of Buildings and cl 4.4 Floor Space Ratio as demonstrated in the amended plans including Drawing DA001 which summarises the various relevant calculations of the Proposed Development including building height, floor space ratio and lot size.

5. Clause 6.1(1) of the MPP is titled Public Utilities Infrastructure and provides that “the consent authority must not grant development consent to development on land to which this Precinct Plan applies unless it is 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.” I am satisfied that the Site is serviced by water and sewer, and that these essential public infrastructure services will be connected to the Proposed Development in accordance with Sydney Water’s requirements. In addition, electricity and telecommunication services are available to the Site along South Street and I am satisfied that these services will be connected to the Proposed Development in accordance with the requirements of the relevant authority.

6. Clause 6.4 of the MPP requires satisfaction regarding the disturbance of native vegetation and is relevant to the relatively small portion of the Site which is zoned E2 and which falls with a Riparian Protection Area. I am satisfied that the Proposed Development seeks to utilise the E2 zone as a recreation area without any significant built form and that the landscape plan proposes to plant native trees in the E2 riparian zone. Having considered the current vegetated state and condition of the Site together with the landscaping details of the Proposed Development I am satisfied that the various components of cl 6.4 are appropriately complied with.

7. The provision of cl 7 of the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) provides a jurisdictional prerequisite regarding contamination and residential development. I have considered the contamination site investigation report prepared by Geotesta on behalf of the Applicant which details the results of the investigation of the likelihood of the presence of contamination on the Site. I am satisfied that based on the assessment undertaken by Geotesta, the Site was found to have concentrations of contaminants below the Site Assessment Criteria and that the Site is considered suitable for residential development.

8. The Applicant has provided an updated BASIX Certificate to accompany the plans upon which consent is sought as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

9. I am satisfied that the matters under cll 5, 6 and 8 of the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 1—1997) have been considered and that the conditions of consent have been agreed in relation to stormwater water quality and quantity.

10. The parties have referred to consent condition 4.2 which requires the payment of Special Infrastructure Contribution pursuant to s 7.23 of the EPA Act.

11. Clause 30(2)(a) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) requires that development consent must not be granted if the Proposed Development does not demonstrate that adequate regard has been given to the design quality principles and I am satisfied that the amended Proposed Development has been redesigned and now satisfied the design quality principles provided at Schedule 1 of SEPP 65 and the Apartment Design Guide. I have also considered the Design Verification Statement prepared by Universal Property Group trading as Bathla Group dated 8 February 2021 and filed 11 February 2021.

12. Finally, in relation to notification of the Proposed Development and public interest considerations, I note that the Amended Statement of Facts and Contentions filed 27 January 2021 sets out the steps taken by the Respondent to notify the Proposed Development. Only one submission has been received, the substance of which has now been satisfactorily addressed in relation to compliance with stormwater requirements as set out in the conditions of consent.

6. The parties gave the above explanations as how the jurisdictional prerequisites have been satisfied and I have set out my reasons above as to my state of satisfaction.

7. 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.

8. The Court orders:

1. The appeal is upheld.

2. Development Application No DA-19-01298 for the demolition of an existing dwelling and associated outbuildings, removal of existing vegetation and trees, torrens title subdivision into 2 lots, construction of a new 72 unit residential flat building with basement car parking, communal open space and public landscaping on proposed Lot 1 and stormwater drainage on Lot 5 in Deposited Plan 1206952 otherwise known as 137 South Street, Marsden Park NSW 2765 is approved subject to the conditions included at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (451532, pdf)

Plans (20367352, pdf)

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Decision last updated: 26 February 2021