Universal Property Group Pty Ltd v Blacktown City Council

[2019] NSWLEC 1064

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1064
Hearing dates:	Conciliation conference on 4 February 2019
Date of orders:	08 February 2019
Decision date:	08 February 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [8] below
Catchwords:	DEVELOPMENT APPLICATION: six new residential flat buildings; 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 (Sydney Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Solicitors: E Fleming, Swaab Attorneys (Applicant) L Raffaele, Bartier Perry Lawyers (Respondent)
File Number(s):	2018/265513
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal made pursuant to s 8.11 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the deemed refusal of its development application SPP-18-00008. As lodged the application sought consent for: construction of six residential flat buildings containing 270 apartments with basement car parking for 379 vehicles, landscaping and drainage works. The application was formally amended on the 19 December 2019 and consent is now sought for 270 apartments and basement parking for 382 vehicles. The development is proposed at Lot 16B Pelican Rd Schofields (Lot16B is located in the subdivision of Lot 11 DP1215983).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 30 October 2018. This conference was terminated as agreement was unable to be reached between the parties at that time. After the amendment of the development, with the consent of the parties, a further conciliation conference was listed and held on 4 February 2019. I presided over that conciliation conference.

4. Prior to the second 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

5. 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 have formed this state of satisfaction for the following reasons:

1. The Class 1 application includes owners consent for the development application from the registered land owner;

2. The application has been notified in accordance with the relevant development control plan and the submissions have been considered.

3. The development is proposed under the provisions of the State Environmental Planning Policy (Sydney Growth Centres) 2006 (SEPP Growth Centres). The proposed development is permissible in the R3 Residential zone under Appendix 4: Alex Avenue and Riverstone Precinct Plan 2010 of that instrument.

4. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard in SEPP Growth Centres. The development standard establishes a maximum height of 16m above natural ground, pursuant to cl 4.3: Height of Buildings in Appendix 4 of the instrument. The development, as proposed, exceeds the height standard by 100mm for the roof of Block A and Block D.

5. The Applicant has filed a written variation request pursuant to cl 4.6 of Appendix 4, SEPP Growth Centres prepared by The Bathla Group, dated 18 December 2018. I have reviewed that request and in accordance with cl 4.6(4)(a) of SEPP Growth Centres, I am satisfied that:

1. The written request adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard. The grounds relied on by the applicant and accepted by the Council are that the height variation will result in an improved design and form of the proposed buildings. The request notes that the roof elements have been carefully designed to be decorative and the roof top structures aim to conceal the appearance of the lift overruns and plant. The request identifies that these grounds are consistent with aim (g) of the EPA Act, namely to promote good design and amenity of the built environment. I am satisfied these grounds are sufficient.

2. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance. In particular: the proposed height variation is consistent with the objective to protect the amenity of adjoining development and land in terms of solar access to buildings and open space; to facilitate higher density development in centres and major transport routes while minimising impacts on residential, commercial and open space areas as well as providing for a range of building heights that provide a high quality urban form.

3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard. In particular: the proposed height variation is consistent with the objective to provide for the housing needs of the community in a medium density environment; to provide a variety of housing forms and is not antipathetic to the achievement of objective (c) and (d) of the R3 Medium Density zone.

6. An additional exceedance is generated by ‘architectural roof features’ as defined by cl 5.6   Architectural roof features in SEPP Growth Centres. I am satisfied these elements are: a decorative element on the uppermost portion of a building; are not an advertising structure; does not include floor space area and is not reasonably capable of modification to include floor space area; will cause minimal overshadowing; and contains no building identification signage. I find it is appropriate to grant consent to these exceedances.

7. The development is compliant with the remaining applicable development standards in Appendix 4, SEPP Growth Centres.

8. In accordance with State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, a design verification statement has been provided by a registered architect (Chee Lim #5895).

9. The application was lodged with a Detailed Contamination Assessment of the subject land prepared by Geotechnique Pty Ltd on 8 April 2014. The Council notes it is satisfied that this report addresses the precondition at cl 7 of State Environmental Planning Policy No 55—Remediation of Land. The recommendations of the report are captured in the consent conditions.

10. The subject land is bushfire prone land and is integrated development under s 91 of the EPA Act. It was referred to the NSW Rural Fire Services who provided a Bushfire Safety Authority and concurrence conditions which are incorporated in the attached conditions.

11. Under sch 3 of State Environmental Planning Policy (Infrastructure) 2007, the development is classified as ‘traffic generating development’ as the development provides car parking for 200 or more motor vehicles. The development application was referred to the NSW Roads and Maritime Services (RMS). A response has been received from the RMS and its requirements are included in the consent conditions at Condition 25.

12. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged for each block of the proposed residential flat buildings.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

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

1. The Applicant is granted leave to rely on the amended clause 4.6 request prepared by the Bathla Group at Annexure ‘A’;

2. The Applicant’s written request pursuant to clause 4.6 of Appendix 4 of the State Environmental Planning Policy (Sydney Growth Centres) 2006 seeking a variation of the development standard for height of buildings set out at clause 4.3 is upheld;

3. The appeal is upheld;

4. Development Application No. SPP – 18- 00008 for the construction of six residential flat buildings containing 270 apartments with basement car parking for 382 vehicles, landscaping and drainage works on proposed Lot 16B in the subdivision of Lot 2 DP 1232295 (formerly Lot 16 DP 31797) (Pelican Road, Schofields) as amended is approved subject to conditions in Annexure ‘B’.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (1.59 MB, pdf)

Annexure B (247 KB, pdf)

Amendments

26 February 2019 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties, I amend the orders of 8 February 2019 so that the reference to “Development Application No. SPP – 10- 00008” in Order (4) of the judgment and in the description of the development in Annexure B is replaced by “Development Application No. SPP – 18- 00008”.

Decision last updated: 26 February 2019