Universal Property Group Pty Ltd v Blacktown City Council

[2021] NSWLEC 1005

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1005

Hearing dates:

14-15 December 2020

Date of orders:

7 January 2021

Decision date:

07 January 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application DA-19-01136 for the construction of residential flat buildings comprising 100 residential units and 147 car parking spaces in a shared basement level with associated civil and landscaping works on land described as proposed Lot 2 in a subdivision of Lot 93 DP 208203 otherwise known as 150 Guntawong Road, Riverstone is approved subject to the conditions in Annexure A.

(3) The exhibits, other than Exhibits A, C and 2, are returned.

Catchwords:

DEVELOPMENT APPLICATION – residential flat buildings

Legislation Cited:

Environmental Planning and Assessment Act 1979

Standard Instrument (Local Environmental Plans) Order 2006

State Environmental Planning Policy 65—Design Quality of Residential Apartment Development

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

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Sydney Region Growth Centre) 2006

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Reid (Applicant)
S Berveling (Respondent)

Solicitors:
Swaab (Applicant)
Bartier Perry (Respondent)

File Number(s):

2019/343965

Publication restriction:

Nil

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 of Development Application DA-19-01136 which proposed the construction of residential flat buildings comprising 100 residential units and 151 car parking spaces in a shared basement level with associated civil and landscaping works on land described as proposed Lot 2 in a subdivision of Lot 93 DP 208203 otherwise known as 150 Guntawong Road, Riverstone.

2. The applicant had been granted leave to amend the application in November and applied during the hearing for further leave to amend the plans. That leave was unopposed and the applicant was granted leave to rely on those plans, Exhibit A, subject to the payment of the Council’s costs thrown away pursuant to the provisions of s 8.15 of the EPA Act.

The proposal

3. The plans before the Court still propose the construction of 100 residential units in two buildings above a common basement car park that accommodates 147 cars. Each building is four storeys above the basement and the development contains a mix of studio, 1, 2 and 3 bedroom units.

The site and locality

4. The proposed development would be constructed on lot 2 in a recently approved subdivision of lot 93 DP 208203. When registered, lot 2 will have an area of 8136 square metres. A Transgrid transmission easement affects the eastern section of the site and the lot will be bound on all sides by roadways. The topography of proposed lot 2 falls from the northern corner boundary towards the southern corner boundary by approximately 7m.

5. The site currently contains two dwelling houses with associated outbuildings and farm sheds and is rural in nature. It is situated approximately 3.5km from Rouse Hill town centre and approximately 3.8km from Riverstone railway station. The area is currently largely semi-rural with single dwellings on large lots however is undergoing significant change reflecting its rezoning for medium density development.

Planning controls

6. State Environmental Planning Policy (Sydney Region Growth Centre) 2006 (SEPP2006) applies to the site. The site is located within the Riverstone East Precinct and therefore Appendix 12 Blacktown Growth Centres Precinct Plan apply. The Appendix is in a similar form to Local Environmental Plans made in accordance with the provisions of the Standard Instrument (Local Environmental Plans) Order 2006.

7. Clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

8. The site is within the R3 Medium Density Residential Zone and the objectives of the zone are:

• 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.

9. Residential flat buildings are permitted with consent in the R3 zone.

10. Part 4 contains Principal development standards and those clauses relevant to the application are 4.3 Height of Buildings and 4.4 Floor Space Ratio (FSR). A maximum height of 12m and no FSR development standard applies.

11. The development exceeds the maximum building height and the applicant relies on a written request seeking to vary the standard pursuant to the provisions of cl 4.6 of Appendix 12.

The contentions

12. The contentions in the case are whether the application has had adequate regard to the design quality principles provided at Schedule 1 of State Environmental Planning Policy 65—Design Quality of Residential Apartment Development (SEPP65); whether the amenity of the proposed apartments is acceptable and whether adequate information has been provided to allow a proper assessment of the application.

13. As a result of the amendments made in the latest version of the plans, Exhibit A, the Council submits that all contentions have either been resolved or are capable of resolution through the imposition all the appropriate conditions of consent.

The evidence

14. Expert reports were prepared addressing town planning, urban design and engineering contentions and, during the joint conferencing, considered what are described as the “Discussion drawings”. Those plans are similar to the plans now before the Court however the plans in Exhibit 1 make further amendments to address the agreed position of the experts.

15. It is common ground that the proposed amendments now incorporated into the plans and the imposition of the agreed consent conditions will address all of the contentions in the case.

16. Other than the breach of the Height of Buildings development standard, all relevant planning controls are satisfied. The Council submits the provisions of SEPP65 are now satisfied and the applicant has filed a Design Verification Statement (Exhibit P).

17. The site has been deemed suitable for residential use following assessment (Exhibits M and N) and therefore satisfies the requirements of State Environmental Planning Policy No 55—Remediation of Land. A BASIX certificate has also been issued and appropriate consent conditions imposed to ensure compliance with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

18. Transgrid has considered the application and provided approval for the works within the easement (driveway and drainage works) and these are reflected in the consent conditions.

19. Notification of the amended plans had not been completed at the finalisation of the hearing and the Council was directed to advise the Court whether any submissions were received at the completion of the exhibition period. The Council advised this period expired on 21 December 2020 and at close of business no submissions had been received.

Conclusion and findings

20. Having regard to the evidence and the submissions of the Council, I am satisfied that the proposed development is appropriate and, in a form, suitable for development of the land. However, for consent to be granted, I must also be satisfied that it is appropriate to allow variation of the building height development standard.

21. The applicant has filed a cl 4.6 variation request to vary the development standards at cl 4.3 Height of Buildings under SEPP2006. This request accords with the amended plans. The only parts of the buildings that exceed the height are the lift towers and the extent of the variation is shown on the Building Height Analysis Drawing in Exhibit A. I have reviewed the request and in accordance with cl 4.6 of LEP 2013, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of Appendix 12 to SEPP2006).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of Appendix 12 to SEPP2006).

22. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of Appendix 12 to SEPP2006 are met.

23. For the reasons outlined in the written requests, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R3 Medium Density Residential zone the Height of Buildings development standard. The objectives of the standard are:

(a) to establish the maximum height of buildings,

(b) to minimise visual impact and protect the amenity of adjoining development and land in terms of solar access to buildings and open space,

(c) to facilitate higher density development in and around commercial centres and major transport routes.

24. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of Appendix 12 to SEPP2006 are met.

25. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

26. The states of satisfaction required by cl 4.6 of the LEP 2013 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

27. The parties could not agree on the final form of the conditions and in this regard, having regard to the submissions received, I find that condition 2.5.1.1 should remain in the form of the Council’s standard condition as the additional wording proposed by the applicant is superfluous and assumes approval of plans that have not been approved under the consent.

28. There being no reasons why consent should not be granted, the Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA-19-01136 for the construction of residential flat buildings comprising 100 residential units and 147 car parking spaces in a shared basement level with associated civil and landscaping works on land described as proposed Lot 2 in a subdivision of Lot 93 DP 208203 otherwise known as 150 Guntawong Road, Riverstone is approved subject to the conditions in Annexure A.

3. The exhibits, other than Exhibits A, C and 2, are returned.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (475842, pdf)

Plans (44463561, pdf)

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Amendments

13 January 2021 - The date "7 January 2021" inserted into the "Date of Determination" (Page 1) of Annexure A.

13 January 2021 - Cover sheet corrected.

Decision last updated: 13 January 2021