Universal Property Group Pty Ltd v Blacktown City Council

[2020] NSWLEC 1547

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1547

Hearing dates:

Conciliation conference on 19 October, final agreement filed 20 October 2020

Date of orders:

10 November 2020

Decision date:

10 November 2020

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The Applicant's written clause 4.6 request dated 4 September 2020 made under Appendix 5 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking a variation to the development standard for height under clause 4.3, is well founded and upheld.

(2) The appeal is upheld.

(3) Development Application No. DA-17-01502, for the construction of 2 x five-storey residential flat buildings containing 90 units over 1 level of basement car parking, associated landscaping, palisade fencing and stormwater drainage works on proposed Lot 2 approved in Development Application No. DA-16-04983 on Lot 30 Deposited Plan 1246320 (formerly described as Lot 30 DP262886) known as 305 South Street, Marsden Park, is approved subject to the conditions of consent set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – 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 (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

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)

Texts Cited:

Apartment Design Guide

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Smith (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Swaab Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/397949

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 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-17-01502 (DA). The DA sought consent for the construction of 3 x five-storey residential flat buildings containing 102 units over 1 level of basement car parking (the proposal) at 305 South Street Marsden Park (the site) by Blacktown City Council (the Council).

2. 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 19 October 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. The amended proposal is for the construction of 2 x five-storey residential flat buildings containing 90 units over 1 level of basement car parking, associated landscaping, palisade fencing and stormwater drainage works. The amendments resolve the contentions raised by the Respondent.

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

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, the Parties agree, and I am satisfied, State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth Centres) is the relevant environmental planning instrument. Under the provisions of Appendix 5 of the SEPP Growth Centres, the site is zoned R3 medium density residential, and the amended proposal is permissible with consent.

9. The amended proposal is consistent with all relevant development standards contained within Appendix 5 of the SEPP Growth Centres, except for a non-compliance with the height of building set out in cl 4.3 of Appendix 5 of the SEPP Growth Centres. The amended proposal has a maximum height of building of 16.2 metres and represents a variation of 1.25% to the numerical development standard of 16 metres.

10. Clause 4.6(3) of Appendix 5 of the SEPP Growth Centres requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

11. Clause 4.6(4) of Appendix 5 of the SEPP Growth Centres requires the consent authority to be satisfied the applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

12. Additionally, cl 4.6(4)(b) of Appendix 5 of the SEPP Growth Centres requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

13. The applicant has provided a clause 4.6 written request, prepared by The Bathla Group and dated 4 September 2020, seeking to justify non-compliance with the height of building development standard, and demonstrate the objectives set out in cl 4.3 of Appendix 5 of the SEPP Growth Centres have been met.

14. The amended proposal has been designed to be sited generally within a building envelope determined by the building setback controls and development standards applicable to the site. The extent of building height non-compliance is limited to two lift overruns, which are located within the proposed development in such a manner that their visibility or overshadowing will be negligible or is eliminated entirely. As such, I am satisfied the objectives of the height of building development standard are achieved notwithstanding non-compliance with the standard. Accepting the amended proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest.

15. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the height of building development standard.

16. Further, I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been considered. A site contamination investigation report has been prepared. Conditions of consent have been imposed to ensure the recommendations of the report are implemented.

17. I am satisfied an updated BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate.

18. I am satisfied the requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) have been met and the amended proposal responds to the design quality principles at Schedule 1 of SEPP 65 and to the Apartment Design Guide generally.

19. I am satisfied the requirements set out at cl 4 of Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) have been met by the amended proposal and appropriate conditions of consent have been imposed in relation to water quality and quantity.

20. Section 4.15 of the EPA Act identifies submissions as a relevant consideration in the development assessment process. The parties agree, and I am satisfied, that submissions of objectors have been taken into account as part of the assessment of the amended proposal.

21. Additionally, I am satisfied the amended proposal, after external referral to Transport for NSW, appropriately addresses issues previously raised by that agency.

22. Pursuant to s 7.23 of the EPA Act, a condition of consent has been imposed requiring the payment of Special Infrastructure Contribution.

23. Having considered each of the preceding jurisdictional requirements and forming the necessary view required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

24. The Court orders that:

1. The Applicant's written clause 4.6 request dated 4 September 2020 made under Appendix 5 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking a variation to the development standard for height under clause 4.3, is well founded and upheld.

2. The appeal is upheld.

3. Development Application No. DA-17-01502, for the construction of 2 x five-storey residential flat buildings containing 90 units over 1 level of basement car parking, associated landscaping, palisade fencing and stormwater drainage works on proposed Lot 2 approved in Development Application No. DA-16-04983 on Lot 30 Deposited Plan 1246320 (formerly described as Lot 30 DP262886) known as 305 South Street, Marsden Park, is approved subject to the conditions of consent set out in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (505890, pdf)

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Decision last updated: 10 November 2020