Universal Property Group Pty Ltd v Blacktown City Council

[2020] NSWLEC 1351

Land and Environment Court

New South Wales

Medium Neutral Citation:

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1351

Hearing dates:

Conciliation conference on 9 July 2020

Date of orders:

10 August 2020

Decision date:

10 August 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

See orders at [26]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

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

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

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
C McEwen (Applicant)
S Simington (Solicitor) (Respondent)

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

File Number(s):

2019/208878

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (Council) of Development Application No DA-19-00123 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 3.846 hectare parcel of land identified as Lot 62 DP1196729 and Lot 2 DP505790 at 226-228 Grange Avenue, Marsden Park (the Site). It is located on the north-eastern corner of the intersection of Grange Avenue and Richmond Road. The majority of the Site is within the R3 Medium Density Residential Zone (R3 Zone) as contained in the State Environmental Planning Policy (Sydney Region Growth Centre) 2006 (Growth Centres SEPP) and Appendix 12 Blacktown Growth Centres Precinct Plan 2010 (Precinct Plan). A small portion of the Site along the eastern side boundary is within the R2 Low Density Residential Zone (R2 Zone) of the Growth Centres SEPP and Precinct Plan.

3. The development, as illustrated on the DA plans originally lodged with Council on 1 February 2019, sought consent for:

1. The demolition of a dwelling house and associated buildings, and the removal of all trees on the Site.

2. The subdivision of the Site into 108 Torrens title allotments comprising 106 residential allotments, one ‘superlot’ allotment (proposed Lot 91) to be used for a temporary onsite stormwater detention (OSD) basin and one ‘superlot’ (proposed Lot 26). No consent was sought for the use of proposed Lot 26 although the applicant’s Statement of Environmental Effects foreshadowed future residential flat development and a child care centre would be located on that land.

3. The construction of roads to provide access to the 108 allotments, and drainage works.

4. The construction of 118 dwellings on the 106 residential allotments, comprising:

1. On the R2 Zone land, 11 x dwelling houses, 2 x secondary dwellings, and one dual occupancy (a total of 15 dwellings); and

2. On the R3 Zone land, 83 x dwelling houses, 2 x semi-attached dwellings and 9 x dual occupancies (a total of 103 dwellings).

4. The DA was based on the subdivision plan and architectural plans prepared by the Bathla Group, dated 17 January 2019 (the Revision A plans), and engineering plans prepared by Barker Ryan Stewart, dated 31 January 2019. The DA was advertised from 18 February 2019 to 4 March 2019 and no submissions were received.

5. The Court arranged two conciliation conferences under s 34(1) of the Land and Environment Court Act1979 (LEC Act) between the parties. I presided over both conciliation conferences. The first conciliation conference was held on 29 October 2019, commencing with a site view. There were no objectors registered to speak at the site view. The first conciliation conference was terminated by me on the date of the conciliation conference in circumstances where the parties could not reach an agreement.

6. On 26 August 2019, the Council filed its Statement of Facts and Contentions (SOFC) with the Court, and on 5 November 2019 the Registrar set the matter down for a hearing on 3 and 4 June 2020. In April 2020 the parties agreed to vacate the June hearing dates and the Court rescheduled the matter for a hearing on 9 and 10 July 2020. The parties also agreed to my presiding at the hearing.

7. Following discussions between the parties after termination of the first conciliation conference, and in response to matters raised in the SOFC, on 27 May 2020 the applicant filed with the Court an Amended Notice of Motion seeking leave to rely on amended architectural, landscape and engineering plans, and two supporting documents: an Addendum Statement of Environmental Effects and a Clause 4.6 Variation to Residential Density Standards, both dated 27 May 2020. On 2 June 2020, the Court granted leave to rely on the amended plans and documents as listed in the Amended Notice of Motion, and that the parties file and serve all joint expert reports by 24 June 2020.

8. The application, as amended, sought consent for subdivision of the land to create 93 Torrens title residential lots and two Torrens title ‘superlots’, the construction of 89 dwelling houses and 4 semi-detached dwellings, a temporary OSD, tree removal and associated infrastructure works (roads and drainage) over two stages.

9. On 10 June 2020, the Council, in response to the amended plans, filed with the Court an Amended Statement of Facts and Contentions (Amended SOFC). In response to the Amended SOFC the applicant submitted amended engineering plans to the Council on 14 June 2020, and on 25 June a Joint Expert Report of the engineers was filed with the Court. The engineers who prepared the Joint Expert Report considered the plans submitted to Council on 14 June 2020 and recommended further changes.

10. Based on the engineers Joint Expert Report, on 6 July 2020 the applicant filed with the Court another Amended Notice of Motion seeking leave to rely on amended engineering plans, the Revision K plans prepared by Barker Ryan Stewart dated 2 July 2020.

11. On 8 July 2020, the parties advised the Court that they had reached an agreement, including conditions of consent, and requested the Court’s leave to convert part of the hearing scheduled for the next day into a s 34 conference, so that the parties could enter into a s 34 agreement. The Court granted that request and the second s 34 conciliation conference was held on 9 July 2020.

12. At the second conciliation conference held on 9 July 2020 a written agreement was reached between the parties and filed with the Court that same day. The s 34 agreement is based on the survey and architectural plans filed with the Court on 27 May and the Revision K engineering plans filed with the Court on 6 July 2020. The Court had not granted leave to rely on the Revision K engineering plans at that point.

13. The main changes between the plans as originally submitted and the plans the subject of the s 34 agreement are:

1. The land to which the development relates was expanded to include part of 4 adjoining parcels of land to the north and north-east of the Site and referred to as Lot 13 DP734813, Lot 12 Section K DP 1934074, Lot 11 Section K DP 1934074 and Lot 10 DP 628301. Additional road works and drainage works are proposed on the newly added land. The newly added land is owned by UPG 27 Pty Limited, and the owner’s consent to carry out works on this land was filed with the Court on 9 July 2020.

2. The subdivision layout was amended to relocate the entry road (Road 3) from Grange Avenue in an easterly direction to align with the eastern side boundary.

3. The number of Torrens title lots was reduced from 108 to 95, with the consolidation into one superlot of the previously proposed lots 19 to 25, and lots 27 to 35. The newly consolidated superlot, proposed Lot 25, has an area of 3,998m². The adjoining superlot, proposed Lot 26, remained unaltered.

4. Although the development is not staged development, it is proposed to divide the works into two stages. The Stage 1 works comprise demolition, tree removal and the construction of all roadways and drainage works, including the two temporary OSD Basins A and B, and the construction of 84 two storey dwellings.

5. The Stage 2 works comprise the removal of the two temporary OSD Basins and construction of 9 two storey dwellings on the 9 underlying residential lots: four in the north-east corner of the Site where temporary OSD Basin B is located and five in the north-west corner where temporary OSD Basin A is located.

14. The agreement reached between the parties involves the Court granting leave to rely on the Revision K engineering drawings, upholding the appeal and granting development consent, subject to conditions including deferred commencement conditions, pursuant to s 4.16(1) of the EPA Act. 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. 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. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in paragraphs 15 to 25 below.

15. With respect to the Growth Centres SEPP and associated Precinct Plan, I am satisfied that the development is for purposes that are all permitted, with consent, in the R3 Zone and R2 Zone, and satisfies the objectives of those zones. Subdivision is permissible under cl 2.6 of the Precinct Plan; the erection of semi-detached dwellings is permissible in the R2 Zone, dwellings are permissible in the R3 Zone and roads are permissible in both zones (cl 2.3 of the Precinct Plan).

16. With respect to the minimum lot size provisions in the Precinct Plan:

1. Clause 4.1(3) does not apply as the Site is not shown on the Lot Size Map.

2. Clause 4.1AB(3) specifies for the Site (both zones) a minimum lot size for the erection of a dwelling house of 300m². The DA however relies on cll 4.1AD(2)(b) and 4.1AF(2) as exceptions to these minimum lot sizes for dwelling houses.

3. Clause 4.1AD(2)(b) is relied upon for the proposed lots with an area less than 300m² but not less than 250m², as the DA is a single application for both subdivision and the erection of dwelling houses on the lots resulting from the subdivision. Exceptions can therefore be granted to the minimum lot sizes that would otherwise apply under cl 4.1AB(3).

4. Clause 4.1AF covers exceptions to minimum lot sizes for dwelling houses on small lots in the R3 Zone. Although the proposal contains some lots in the R3 Zone with an area less than 225m² (but not less than 125m²), development consent may be granted because the DA is a single application for both subdivision of the land and the erection of the dwelling houses. Exceptions can therefore also be granted to the standard minimum lot sizes that would otherwise apply under cl 4.1AB (3).

5. Clause 4.1AB(9) sets out the minimum lot sizes for residential flat buildings in the R3 Zone, which in this case is 1,000m². Whilst the DA does not include any development for the purposes of residential flat buildings, it does foreshadow future applications for this purpose on the two superlots, lots 25 and 26. Both the superlots exceed the minimum area of 1,000m².

6. Clause 4.1AB(5) specifies the minimum lot sizes for semi-detached dwellings. The development proposal includes four semi-detached dwellings in the R2 zone, which in this location has a minimum lot size of 200m² for this form of housing. Each of the four lots on which the semi-detached houses are to be erected have an area of 200m² or more, and therefore comply.

7. Clause 4.1B does not apply because the proposed development is not of a kind referred to in cl 4.1AB(3) or cl 4.1AC. It neither involves dwelling houses on lots of 300m² nor secondary dwellings.

17. With respect to cl 5.9 of the Precinct Plan, consideration has been given to the removal of trees and the consent provides for the preservation of trees T7, T8 and T9 (refer condition 3.5).

18. With respect to cl 4.3 of the Precinct Plan, none of the proposed buildings exceed the 21m building height limit.

19. With respect to cl 4.4 of the Precinct Plan, the Site is not subject to any floor space ratio limit.

20. With respect to cl 6.1(1) of the Precinct Plan, regarding public utility infrastructure, the Site is serviced by water and sewer and will be connected in accordance with Sydney Water’s requirements. Electricity and telecommunication services are available along Richmond Road and will be connected in accordance with the requirements of the relevant authority.

21. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. A Contamination Site Investigation Report by Geotesta Pty Ltd dated 12 October 2018 has been submitted by the applicant. It concludes that the Site is suitable for the proposed development, subject to the recommendations contained in the report. Conditions 7.10.1 and 18.2.2 of the agreed conditions of consent (Annexure A to the s 34 agreement) require that the report’s recommendations be implemented. I am therefore satisfied that the relevant provisions of SEPP 55 have been met.

22. State Environmental Planning Policy (Infrastructure) 2007 applies to the Site as it is adjacent to Richmond Road, a classified road. Clause 104 is triggered as the development involves more than 75 dwellings reliant on access from a road that connects to a classified road within 90m. In accordance with cl 104(3), the DA was referred to Transport for NSW (TfNSW) who provided comments to the Council by letter dated 5 April 2019 and email dated 24 June 2020. TfNSW advised it had no objection to the proposal, subject to a number of requirements, which have been addressed by incorporating conditions into the consent (refer deferred commencement conditions 1.1.1 (stormwater discharge), and 1.1.2 (batters to Richmond Road), and general conditions 13.12 (Traffic Control) and 20.4.1 (approval under s 138 of the Roads Act 1993)).

23. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) applies to the development. A revised BASIX Certificate number 1102808M_02 dated 22 May 2020 has been submitted and Condition 10.3 of the consent requires that all commitments in the Certificate be complied with.

24. Sydney Regional Environmental No 20—Hawkesbury Nepean River (No 2—1997) (SREP 20) applies to the land. The DA has considered the relevant matters under cl 4 of SREP 20 and conditions of consent have been imposed in relation to stormwater quality and quantity.

25. 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.

26. The Court orders:

1. The Applicant is granted leave to rely upon the following engineering plans:

Drawing No and Revision	Title	Prepared by	Date
Engineering Plans
Cover Sheet Rev K	Cover Sheet – General Notes, Sheet Index and Legend	Baker Ryan Stewart	2 July 2020
SY18199C02 Rev K	Overall Site Plan
SY18199C03 Rev K	Engineering Plan 1 of 4
SY18199C04 Rev K	Engineering Plan 2 of 4
SY18199C05 Rev K	Engineering Plan 3 of 4
SY18199C06 Rev K	Engineering Plan 4 of 4
SY18199C07 Rev K	Internal Lot Plan
SY18199C08 Rev K	Longitudinal Section and Typical Section – Grange Avenue
SY18199C09 Rev K	Longitudinal Section and Typical Section – Road 1
SY18199C10 Rev K	Longitudinal Section and Typical Section – Road 3
SY18199C11 Rev K	Longitudinal Section and Typical Section – Road 5 (1 of 2)
SY18199C12 Rev K	Longitudinal Section and Typical Section – Road 5 (1 of 2)
SY18199C13 Rev K	On Site Detention Details (OSD A)
SY18199C14 Rev K	On Site Detention Details (OSD B)
SY18199C15 Rev K	Water Quality Treatment Details
SY18199C16 Rev K	Typical Details
SY18199C17 Rev K	Drainage Catchment Plan
SY18199C18 Rev K	Drainage Long Section Sheet 1
SY18199C19 Rev K	Drainage Long Section Sheet 2
SY18199C20 Rev K	Drainage Long Section Sheet 3
SY18199C21 Rev K	Drainage Long Section Sheet 4
SY18199C22 Rev K	Drainage Long Section Sheet 5
SY18199C23 Rev K	Drainage Long Section Sheet 6
SY18199C24 Rev K	Drainage Long Section Sheet 7
SY18199C25 Rev K	Drainage Long Section Sheet 8
SY18199C26 Rev K	Drainage Long Section Sheet 9
SY18199C27 Rev K	Drainage Long Section Sheet 10
SY18199C28 Rev K	Drainage Long Section Sheet 11
SY18199C29 Rev K	Drainage Long Section Sheet 12
SY18199C30 Rev K	Drainage Long Section Sheet 13
SY18199C31 Rev K	Drainage Long Section Sheet 14
SY18199C32 Rev K	Bulk Earthworks Plan
SY18199C33 Rev K	Soil and Water Management Plan
SY18199C34 Rev K	Soil and Water Management Details
SY18199C35 Rev K	Water Quality Catchment Plan
SY18199C36 Rev K	On-Site Detention Catchment Plan
SY18199C37 Rev K	Drainage Calculations Sheet 1
SY18199C38 Rev K	Drainage Calculations Sheet 2
SY18199C39 Rev K	Drainage Calculations Sheet 3
SY18199C40 Rev K	Drainage Calculations Sheet 4
SY18199C41 Rev K	Drainage Calculations Sheet 5
SY18199C42 Rev K	Drainage Calculations Sheet 6
SY18199C43 Rev K	Richmond Road Boundary Retaining Wall Sections
SY18199C44 Rev K	Revised OSD B Outlet and Turning Head
SY18199C45 Rev K	Revised OSD A Outlet Details
SY18199C46 Rev K	OSD A Existing and Proposed Catchment Plan

2. Leave is granted to amend Development Application No. DA-19-00123 to include the construction of the temporary turning head, stormwater drainage works and road works on Lot 10 DP 628301, Lot 11 Section K DP193074 and Lot 12 Section K DP193074 and Lot 13 DP734813.

3. The appeal is upheld.

4. Development Application No. DA-19-00123 is approved for the subdivision of land to create 93 Torrens title residential lots, 2 Torrens title super lots, construction of 89 dwellings and 4 semi-detached dwellings, 2 temporary onsite stormwater detention basins, tree removal, and the construction of new roads and associated infrastructure works, all over two stages, on Lot 62 DP 1196729 and Lot 2 in DP 505790 known as 226-228 Grange Avenue, Marsden Park, and the construction of a temporary turning head, stormwater drainage works and road works on Lot 10 DP 628301, Lot 11 Section K DP193074 and Lot 12 Section K DP193074 and Lot 13 DP734813, subject to the conditions at Annexure A.

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (522169, pdf)

Plans (1263988, pdf)

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Decision last updated: 10 August 2020