Universal Property Group Pty Ltd v Blacktown City Council

[2019] NSWLEC 1623

Land and Environment Court

New South Wales

Medium Neutral Citation:	Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1623
Hearing dates:	Conciliation conference on 27 August 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	APPEAL – modification application – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: E Fleming (Solicitor) (Applicant) D Loether (Solicitor) (Respondent)   Solicitors: Swaab (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	2019/34399
Publication restriction:	No

Judgment

1. COMMISSIONER: On 2 November 2018, the applicant lodged a modification application pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) with Blacktown City Council. The application seeks to modify conditions of development consent JRPP-15-02480 approved by the Joint Regional Planning Panel on 8 March 2017 for the construction of two 5-storey residential flat buildings comprising 171 units at land known as 15A & 15B Pelican Road, Schofields. The modifications that are sought increase the number of units from 171 to 195 units, increase car parking from 236 car parking spaces to 269 car parking spaces, and include associated works including increase in landscaping, reduction of deep soil planting and decrease in communal open space. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 27 August 2019. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

• Qualitatively, the proposal results in two 5-storey residential flat buildings consistent with the building approved by the development consent.

• Quantitatively, the proposed residential flat building as modified provides an increase in apartment yield with 24 additional apartments. However, there is only marginal change in site coverage and gross floor area. The increase in apartment yield results from a change in unit mix to a higher proportion of studio units. This quantitative change in apartment yield is not sufficiently significant (given the overall apartment yield) to render the proposal as modified something that is not substantially the same as what was the subject of the consent.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The Applicant is granted leave to amend its modification application to:

1. rely upon the following plans:

Drawing No. and Revision/Issue	Title	Prepared by	Date
Architectural plans and supporting documents
DA000, Rev B	Cover sheet	The Bathla Group	12 August 2019
DA001, Rev F	Compliance Table		11 November 2019
DA002, Rev A	Site Analysis/Existing		12 October 2019
DA003A, Rev A	Site Plan Permanent Foot Path		27 September 2019
DA003, Rev B	Site Plan with Interim Footpath		27 September 2019
DAA3, Rev A	Site Plan		12 October 2018
0015, Rev A	Extent of Basement		5 September 2019
DA100, Rev F	Basement 1		11 November 2019
DA101, Rev F	Lower Ground		11 November 2019
DA102, Rev G	Ground Level		11 November 2019
DA103, Rev C	Level 1		27 September 2019
DA104, Rev C	Level 2		27 September 2019
DA105, Rev C	Level 3		27 September 2019
DA106, Rev C	Level 4		27 September 2019
DA107, Rev B	Roof		12 August 2019
DA108, Rev B	Typical Adaptable & Livable Units		12 August 2019
DA109, Rev B	Floor Space Ratio Diagrams		12 August 2019
DA110, Rev C	Landscape Deep Soil and COS		5 September 2019
DA111, Rev B	Building Height Diagrams		12 August 2019
DA112, Rev A	Communal Open Space Access		27 September 2019
DA113, Rev A	Dimensioned Layout Block A & B		27 September 2019
DA114, Rev A	Dimensioned Layout Block C & D		27 September 2019
DA115, Rev A	Mail Box Details in Lobby		27 September 2019
DA200, Rev B	Sections 1		12 August 2019
DA201, Rev B	Sections 2		12 August 2019
DA202, Rev B	Sections Showing 4.5M Min Clearance		12 August 2019
DA203, Rev C	Balcony & Floor Height Details		2 October 2019
DA204, Rev A	Typical POS Detail		12 August 2019
DA300, Rev C	Elevations		27 September 2019
DA400, Rev B	Sun Eye Perspectives Diagram		12 August 2019
DA401, Rev B	Shadow Diagrams		12 August 2019
DA402A, Rev A	Solar Access – LG & G 21ST June		12 August 2019
DA402B, Rev A	Solar Access - G & L1 21st June		12 August 2019
DA402C, Rev A	Solar Access – L1 & L2 21st June		12 August 2019
DA402D, Rev A	Solar Access – L3 & L4 21st June		12 August 2019
DA402, Rev B	Solar Access Compliance Diagrams		12 August 2019
DA500, Rev C	Photo Montage		27 September 2019
DA501, Rev C	Colour and Material Schedule		5 September 2019
DA600, Rev B	Cross Ventilation		12 August 2019
Works as executed plan
7663 190810 (Ref 7663)	Work as Executed - Basement	SDG Land Development Solutions	9 October 2019
Landscaping Plans
N/A	Cover Sheet	Conzept Landscape Architects	Undated
LPDA20-48, Sheet LP01, Rev B	Masterplan		26 September 2019
LPDA20-48, Sheet LP02, Rev B	Open Space (BLDG A-B)
LPDA20-48, Sheet LP03, Rev B	Open Space (BLDG B-C)
LPDA20-48, Sheet LP04, Rev B	Open Space (BLDG C-D)
LPDA20-48, Sheet LP05, Rev B	Hardscape Plan
LPDA20-48, Sheet LP06, Rev B	LP06 – Details
LPDA20-48, Sheet LP07, Rev B	LP07 – Details 2
LPDA20-48, Sheet LP08, Rev B	Section (Building B – C)
Turn Path Plans
N/A	8.8m MRV Truck Swept Turning Path	Varga Traffic Planning	9 August 2019
Engineering Plans
000, Rev G	Cover Sheet	Australian Consulting Engineers	15 September 2019
101, Rev G	Stormwater Concept Plan, Basement 1 Level Sheet 1 of 3
102, Rev G	Stormwater Concept Plan, Basement 1 Level Sheet 2 of 3
103, Rev G	Stormwater Concept Plan, Basement 1 Level Sheet 3 of 3
104, Rev G	Stormwater Concept Plan Lower Ground Level Sheet 1 of 2
105, Rev G	Stormwater Concept Plan Lower Ground Level Sheet 2 of 2
106, Rev G	Stormwater Concept Plan Ground Level Sheet 1 of 2
107, Rev G	Stormwater Concept Plan Ground Level Sheet 2 of 2
108, Rev G	Bio-Retention Details
109, Rev G	Music Model Catchment Breakdown & Details
110, Rev G	Miscellaneous Details Sheet

2. The appeal is upheld.

3. Modification Application MOD-18-00586 to modify Development Consent JRPP-15-02480 approved by the Joint Regional Planning Panel on 8 March 2017, is approved in accordance with the modifications set out in Annexure "A".

4. As a consequence of Order 3, Development Consent JRPP-15-02480 is now subject to the consolidated, modified conditions of development consent set out in Annexure "B".

…………………………

J Gray

Commissioner of the Court

Annexure A (98.3 KB, pdf)

Annexure B (243 KB, pdf)

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Decision last updated: 24 December 2019