Universal Property Group Pty Ltd v Blacktown City Council

[2021] NSWLEC 1020

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1020

Hearing dates:

Conciliation Conference on 10 December 2020

Date of orders:

15 January 2021

Decision date:

15 January 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [30]

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Roads Act 1993

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

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 2—1997)

Texts Cited:

Apartment Design Guide

Appendix 12, Blacktown Growth Centres Precinct Plan 2013

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Reid (Applicant)
S Puckeridge (Solicitor) (Respondent)

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

File Number(s):

2019/18443

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (the Respondent) of Development Application DA-18-01556 seeking consent for the construction of a six-storey residential flat building containing 108 apartments and associated works including basement car parking, access driveways to the basement car park, stormwater drainage and landscaping on Lot 2 in the approved subdivision of Lot 6 in DP 1245610 known as part No’s 1070, 1080 and 1082, Richmond Road, Marsden Park (the site).

2. I rely upon the background facts and contentions of the matter as set out by the Respondent in the Statement of Facts and Contentions, filed with the Court on 15 March 2019.

3. I also note that prior to the hearing, the Applicant was granted leave on 2 November 2020 to amend the application and rely upon amended plans and other documents, which the parties agree substantially resolves the matters in contention.

4. At the commencement of the hearing, the parties advised me that as the experts had agreed on all matters in contention, the dispute had been narrowed to the proposed conditions of consent that had been provided by the Applicant to the Respondent immediately prior to the commencement of the hearing.

5. The Respondent sought, and was granted, an adjournment in order to settle the draft proposed conditions. In granting the adjournment, the Court identified a number of apparent errors and omissions on the architectural drawings and directed that relevant experts confer in order to address the same prior to the resumption of the hearing.

6. At the resumption of the hearing on 9 December 2020, the parties advised that the parties had addressed the matters identified in the architectural drawings and had now reached in-principle agreement, and sought the matter be listed for conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act).

7. The matter was reallocated to me under s 34(1) of the LEC Act for a conciliation conference between the parties, which was held on 10 December 2020 in accordance with directions of the Court and with consent of the parties.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 14 December 2020, recording 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 of consent pursuant to s 4.16(1) of the EPA Act.

9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. 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.

10. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [30]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdiction

11. The site is located within the R3 Medium Density Residential zone as identified by the Blacktown Growth Centres Precinct Plan 2013 (Precinct Plan) which is found at Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP).

12. Residential flat buildings are permitted in the R3 zone with consent, and where the development is consistent with the objectives of the R3 zone which are in the following terms:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.

13. The Residential Density Map at clause 4.1B of the Precinct Plan requires a minimum of 35 dwellings per hectare, with which the proposed development complies.

14. As a portion of the proposed development exceeds the height of buildings standard of 21m, at clause 4.3 of the Precinct Plan, the Applicant relies upon a written request prepared by Think Planners dated 9 December 2020 in accordance with clause 4.6 of the Precinct Plan to justify the extent of the contravention (written request).

15. The exceedance ranges between 220mm and 650mm at what is referred to as a ‘feature parapet/blade wall’ that is said to ‘add articulation and improve façade treatment to the building’.

16. However, as the exceedance is merely a decorative element on the uppermost portion of a building, is not an advertising structure, does not include floor space area and is not reasonably capable of modification to include floor space area, and will cause only minimal overshadowing, I am satisfied that the exceedance is an architectural roof feature permitted by clause 5.6 of the Precinct Plan.

17. As the proposed development is for residential apartment development, the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies, and relevantly provides:

1. A consent authority, or the Court on appeal, is to take into consideration, among other things;

• the design quality of the development when evaluated in accordance with the design quality principles (at subcl 28(2)(b)), and

• the Apartment Design Guide (at subl 28(2)(c)).

2. At subcl 30(2), consent must not be granted unless the consent authority, or the Court on appeal, is of the opinion that the proposed development demonstrates adequate regard has been given to the design quality principles at Schedule 1 of the SEPP 65, and to the objectives specified in the Apartment Design Guide (ADG).

18. Relatedly, for development applications referrable to SEPP 65, s 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) requires that a qualified designer, being defined at s 3 of the EPA Regulations as a person registered under the Architects Act 2003, must provide the consent authority, or the Court on appeal, with an attestation that they designed, or directed the design of the development.

19. Furthermore, the attestation must address the design quality principles in Schedule 1 of SEPP 65, and demonstrate, in terms of the ADG, how the objectives in Parts 3 and 4 of that guide have been achieved.

20. I note that the revised design statement prepared by Mr Chee Kean Lim (Architects Registration No. 5895), filed with the Court on 9 December 2020, is in a complying form, and is to the satisfaction of the Respondent in respect of the matters at subcll 28 and 30 of SEPP 65.

21. While I consider the evaluation undertaken by Mr Lim in the design statement against the design quality principles to largely comprise statements of wide generality, I accept that the assessment of compliance with the objectives specified in the ADG demonstrates adequate regard has been had to those matters at cl 30(2)(a) and (b) of the SEPP 65.

22. As the site is serviced by water and sewer, and services such as telecommunications and electricity are available to the site, the provisions of clause 6.1 of the Precinct Plan are satisfied.

23. In respect of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), the Applicant relies upon a Preliminary Site Investigation report prepared by Martens consulting engineers dated December 2015, and a Detailed Site Investigation Report prepared by Geotesta dated 31 December 2016 and filed with the Class 1 Application which concludes that the site is suitable for the proposed land use for residential development.

24. As the site is located adjacent to Richmond Road, being a classified road for which the Respondent has control pursuant to s 145 of the Roads Act 1993, the application was referred to Transport for NSW for comment in accordance with cl 104 of the State Environmental Planning Policy (Infrastructure) 2007, and in response to which no objection was received.

25. The application is accompanied by a BASIX Certificate prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulations (Certificate No. 1156079M dated 20 November 2020).

26. The Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20) sets out, at cl 4, general planning matters to be considered and, at cl 6, specific planning policies to be considered by operation of cl 4 of the SREP 20. I note that conditions of consent are proposed, in particular, in respect of water quality and quantity, being matters set out in cl 6 of the SREP 20.

27. Provision is made in the conditions of consent for a special infrastructure contribution to be paid by the Applicant in accordance with s 7.23 of the EPA Act.

28. 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. 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.

29. 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 whatsoever of the issues that were originally in dispute between the parties.

30. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

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

Drawing No. and Revision/Issue	Title	Prepared by	Date
Architectural plans
DA 000 Issue E	Cover Sheet	The Bathla Group	21 October 2020
DA 001 Issue F	Compliance Table		16 November 2020
DA 002 Issue C	Location Plan		14 October 2019
DA 003 Issue E	Site Analysis		21 October 2020
DA 004 Issue E	Site Survey Plan		8 December 2020
DA 005 Issue F	Site Plan		8 December 2020
DA 006 Issue E	Basement 2 Plan		8 December 2020
DA 007 Issue G	Basement 1 Plan		8 December 2020
DA 008 Issue G	Ground Floor Plan		8 December 2020
DA 009-A Issue F	Level 2		8 December 2020
DA 009-B Issue F	Level 3		8 December 2020
DA 009-C Issue F	Level 4		8 December 2020
DA 009-D Issue F	Level 5		8 December 2020
DA 009 Issue F	Level 1		8 December 2020
DA 010 Issue F	Roof Plan		8 December 2020
DA 011 Issue E	Elevation 1		21 October 2020
DA 012 Issue E	Elevation 2		21 October 2020
DA 013-A Issue A	Sections		22 November 2019
DA 013 Issue F	Sections		16 November 2020
DA 014 Issue F	Material and Finishes		8 December 2020
DA 015 Issue E	Shadow Diagram		21 October 2020
DA 016 Issue E	Solar Access		21 October 2020
DA 017 Issue E	Cross Ventilation		21 October 2020
DA 018 Issue E	Area Calc-GFA		21 October 2020
DA 019 Issue F	Area Calc. Landscape, COS & Deep Soil		16 November 2020
DA 020 Issue E	Area Calc- Landscape-COS		21 October 2020
DA 021 Issue D	Building Height Compliance		22 November 2019
DA 022 Issue C	Typical, Adaptable & Livable Unit		14 October 2019
DA 023 Issue E	Perspective Views		21 October 2020
DA 024 Issue D	Ramp Sections		16 November 2020
DA 025 Issue C	Notification Plan		14 October 2019
DA 026 Issue C	Enhanced Amenity		14 October 2019
DA 027 Issue D	Apartment Size and Layout		21 October 2020
DA 028 Issue B	Additional Information (Storage)		16 November 2020
WM 001	Bin Transfer Path		undated
Landscape Plans
LPS34 21-116 Rev B Page 1	Hardscape Plan	Conzept Landscape Architects	17 November 2020
LPS34 21-116 Rev B Page 2	Deep Soil Plan & Calculations		17 November 2020
LPS34 21-116 Rev B Page 3	Landscape Master Plan		17 November 2020
LPS34 21-116 Rev B Page 4	Landscape Plan 01		17 November 2020
LPS34 21-116 Rev B Page 5	Landscape Plan 02		17 November 2020
LPS34 21-116 Rev B Page 6	Landscape Plan 03		17 November 2020
LPS34 21-116 Rev B Page 7	Sections		17 November 2020
LPS34 21-116 Rev B Page 8	Details & Specifications		17 November 2020
LPS34 21-116 Rev B Page 9	Details		17 November 2020
LPS34 21-116 Rev B Page 10	Details		17 November 2020

2. The Applicant is granted leave to amend its development application to rely upon the follow documents:

Title	Prepared by	Date
Clause 4.6 Variation: Building Height	Think Planners Pty Ltd	9 December 2020
Waste Management Plan – Revision F	Universal Property Group Pty Ltd	17 November 2020
Basix Certificate Number 1156079M NatHERS Certificate No0005408010 and Stamped Plans	SLR Consulting Pty Ltd	20 November 2020
Design Verification Statement	Universal Property Group Pty Ltd	November 2020

3. The appeal is upheld.

4. Development Application No. DA-18-01556, for the construction of a residential flat building containing 100 units with basement carparking, access driveways, stormwater drainage and landscaping on proposed Lot 2 as approved in DA-18-00159 relating to Lot 5 DP1245610, Lot 6 DP1245610,Lot 11 DP1245610, Lot 7 DP1245610, Lot 60 DP1196729, Lot 8 DP 1245610, Lot 21 DP 1191512, Lot 20 DP 1191512, Lot 9 DP 1245610 and Lot 10 DP 1245610, is approved subject to the conditions at Annexure A.

……………………

T Horton

Commissioner of the Court

Annexure A (380562, pdf)

Architectural Plans (21354262, pdf)

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Decision last updated: 15 January 2021