Universal Property Group Pty Ltd v Blacktown City Council

Case •

[2021] NSWLEC 1508

•

01 September 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1508
Hearing dates: Conciliation conference on 10 June 2021 and 20 August 2021
Date of orders: 1 September 2021
Decision date: 01 September 2021
Jurisdiction:Class 1
Before: Bindon AC
Decision:

The Court orders:

(1) The Council, as the relevant consent authority has agreed, pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000, to amend Development Application DA-19-01484, with the amended plans and documents uploaded on the NSW Planning Portal on 11 August 2021, and filed with the Court on 26 May 2021, 9 June 2021, 12 July 2021 and 12 August 2021.

(2) The Applicant's written clause 4.6 request prepared by Think Planners dated 8 July 2021 to vary the height control under clause 4.3 of Appendix 12 of the State Environmental Policy (Sydney Region Growth Centres) 2006 is upheld.

(3) The appeal is upheld.

(4) Development Application No. DA-19-01484 (as amended), for the construction of a 6 storey mixed use building (Block A) and a 6 storey residential flat building (Block B) comprising 78 residential units, basement car parking for 159 vehicles, a ground floor centre based child care facility in Block A, signage, stormwater works and landscaping on proposed Lot 8 as approved in DA 18-00159 on Lot 20 and Lot 21 in DP 1191512 and Lot 8 in DP 1245610, known as 1032 Richmond Road, Marsden Park & 232 Grange Avenue, Marsden Park, is approved subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – residential flat building – child care centre – cl 4.6 request to vary height standard – conciliation conference – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 7.23, 8.7

Environmental Planning and Assessment Regulation 2000, cll 50, 55

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23

State Environmental Planning Policy (Infrastructure) 2007, cl 104

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 28, 30

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 12 cll 4.3, 4.6, 6.1

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), cl 4

Texts Cited:

Apartment Design Guide

NSW Department of Planning and Environment, Childcare Planning Guideline, (August 2017)

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, (April 2021)

Category:Principal judgment
Parties: Universal Property Group Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
J McKelvey (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2019/376150
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 the Blacktown City Council (Council) of Development Application DA-19-01484 (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 5,926m2 (approximately) vacant parcel of land comprising the proposed Lot 8 to be created out of the approved subdivision of Lots 20 and 21 in DP1191512 and Lot 8 in DP1245610 otherwise known as part 1032 Richmond Road and 232 Grange Avenue, Marsden Park (the site). The subdivision development application (DA-18-00159) that created Lot 8 was granted consent by the Court on 15 July 2020 in Proceedings No 2019/46583.

  3. The DA (as amended by leave of the Court on 26 May 2021) seeks consent for the construction of a six storey mixed use building (Block A) and six storey residential flat building (Block B) containing a total of 78 residential apartments, shared basement with parking for 159 vehicles, a ground floor child care facility for 100 children in Block A, stormwater drainage and landscaping.

  4. The DA was lodged with the Council on 17 October 2019. It was publicly exhibited and notified between 19 February 2020 and 4 March 2020. No submissions were received. On 29 November 2019 the Applicant commenced these Class 1 proceedings in the Court against the deemed refusal of the DA. On 20 February 2020 the Council filed its Statement of Facts and Contentions (SOFC).

  5. On 3 August 2020 the Parties participated in a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) that was held before Commissioner Walsh. The s34 conciliation conference was terminated by Commissioner Walsh in circumstances where the parties failed to reach an agreement, and a hearing was later scheduled for 10 and 11 June 2021.

  6. On 26 May 2021 leave was granted to the Applicant to rely upon amended plans and documents referred to in the Applicant’s Amended Notice of Motion dated 26 May 2021 as contained in the Exhibit EJF-1 affidavit of Emma Jane Fleming dated 24 May 2021 (the Amended DA). The amended plans and documents comprising the Amended DA are listed in the Council’s Amended Statement of Facts and Contentions dated 4 June 2021 (Amended SOFC) that was filed on 8 June 2021.

  7. On 8 June 2021 the Applicant advised the Court that:

  1. it had that day filed a Joint Expert Report of the town planners/urban designer, based on the Amended DA, and which included at Annexure B an amended Design Verification Statement by Chee Lim of Universal Property Group dated 7 June 2021;

  2. the experts had agreed the contentions were resolved by the Amended DA, or could be resolved subject to conditions;

  3. the Parties had therefore reached an in-principle agreement, and were working towards a s34 agreement and preparing draft conditions of consent; and

  4. the Parties requested the matter be listed as a s34 conciliation conference at 9:30am on 10 June 2021, with the hearing listed for 12:00 noon later that day.

  1. On 9 June 2021 the Court made orders consistent with the request of the Parties, and a second s34 conciliation conference was held before me on the morning of 10 June 2021, at which the Parties confirmed they had reached a s34 agreement. In support of the agreement the following additional documents had been filed with the Court on 9 June 2021:

  1. Letter of Advice – Traffic and Parking Matters, prepared by Varga Traffic Planning Pty Ltd dated 26 May 2021;

  2. Detailed Contamination Site Investigation Report 1036 Richmond Road Marsden Park, prepared by Geotesta Pty Ltd dated 17 January 2017;

  3. Detailed Contamination Site Investigation Report 1036 Richmond Road Marsden Park, prepared by Geotesta Pty Ltd dated 27 January 2017;

  4. Detailed Contamination Site Investigation Report 232 Grange Ave, Marsden Park, prepared by Geotesta Pty Ltd dated 10 January 2017; and

  5. Detailed Contamination Site Investigation Report 230 Grange Ave, Marsden Park, prepared by Geotesta Pty Ltd dated 27 January 2017.

  1. By agreement between the Parties there was no site inspection as part of the second s34 conciliation conference. At the 10 June 2021 conciliation conference the Court was taken to the draft s34 agreement and various documents referred to in the agreement. Arising from discussions in the s34 conference the parties then made some minor changes to the agreement and some of the conditions of consent. An amended s34 agreement, dated 10 June 2021, and draft conditions (at Annexure A to that agreement) were filed with the Court later that day, along with an updated BASIX Certificate (Certificate number 1041097M_02 dated 10 June 2021), and a Jurisdictional Statement agreed between the parties.

  2. In reviewing the DA documentation, Jurisdictional Statement and environmental planning instruments I identified an apparent non-compliance with the height of buildings development standard in the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Appendix 12 - The Marsden Park Precinct Plan (SEPP Growth Centres Precinct Plan) and sought submissions from the parties. The parties agreed the proposal breached the height standard in the SEPP Growth Centres.

  3. On 9 July 2021 the parties filed a further amended s34 agreement, dated 9 July 2021, with draft conditions (Annexure A to that agreement) and a revised Jurisdictional Statement incorporating reference to a written request to vary the building height standard, made pursuant to cl 4.6 of the SEPP Growth Centres Precinct Plan. On 12 July 2021 the document entitled “Clause 4.6 Variation: Building Height” prepared by Think Planners Pty Ltd, dated 8 July 2021 (Clause 4.6 Request) was filed with the Court.

  4. On 5 August 2021 the Court advised the parties that, pursuant to amendments to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), amendments to the DA would need to be uploaded to the NSW Planning Portal before the amendment becomes effective and consent to the DA can be granted. The parties were also requested to recast their s34 agreement to reflect these changed requirements for amending the DA.

  5. On 17 August 2021 the parties filed a final version of the s34 agreement, signed and dated 17 August 2021 (Final s34 Agreement), incorporating amendments referring to the uploading of the amended DA material to the NSW Planning Portal.

  6. The differences between the development as originally proposed (and contained in the Class 1 Application) and the development the subject of the Final s34 Agreement are not significant.

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

  8. The parties have identified the jurisdictional prerequisites of relevance in these proceedings in the Jurisdictional Statement filed on 9 July 2021 and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act, and that approval of the Amended DA, subject to conditions, would not result in a contravention of the EPA Act, an environmental planning instrument or the EPA Regulations.

Satisfaction of jurisdiction

  1. In relation to the SEPP Growth Centres Precinct Plan the relevant provisions are:

  1. The development is for the purposes of residential flat buildings and a centre-based child care facility, which are uses permitted with consent in the R3 Medium Density Residential Zone (R3 Zone) which applies to the site (proposed Lot 8), and is consistent with the objectives of the R3 Zone.

  2. The maximum height of the development, at 21.24m (Building B) and 22.34m (Building A) contravenes the 21.0m height of buildings development standard at cl 4.3 of the SEPP Growth Centres Precinct Plan.

  3. The parties agree that the Clause 4.6 Request seeking a variation to the cl 4.3 height standard is acceptable and should be upheld. For the reasons contained in the Clause 4.6 Request, I am satisfied that the applicant’s written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the SEPP Growth Centres Precinct Plan are therefore satisfied.

  4. I am also satisfied, for the reasons set out in the Clause 4.6 Request, that the written request has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R3 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the SEPP Growth Centres Precinct Plan are therefore satisfied.

  5. There is no floor space ratio (FSR) prescribed for the site under the SEPP Growth Centres Precinct Plan.

  6. The DA documentation has established that public utility infrastructure is available, in the case of water and sewer services, or can be made available when required, in the case of electricity and telecommunication services, in accordance with cl 6.1 of the SEPP Growth Centres Precinct Plan.

  1. In relation to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guide (ADG):

  1. The design quality principles of SEPP 65 and the relevant provisions of the ADG have been taken into consideration, and the parties agree the proposed development demonstrates that adequate regard has been given to them. Clauses 28 and 30 of SEPP 65 have therefore been satisfied.

  2. The Amended DA has been redesigned and the development now satisfies the design quality principles provided at Schedule 1 of SEPP 65 and the ADG. The Amended DA is supported by the amended SEPP 65 Design Verification Statement prepared by Chee Lim of Universal Property Group dated 7 June 2021 in satisfaction of the requirement in cl 50(1A) of the EPA Regulation.

  1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7, applies to the land and requires consideration of any contamination and associated remediation. The four “Detailed Site Investigation Reports” as referred to in par [8] cover the area of the site. Those reports confirm that the overall contaminates of the soils are less than the threshold levels and the site is considered suitable for the proposed land use for residential development. Conditions of consent are included that reference these reports and the requirements to deal with any unexpected finds.

  2. In relation to State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) the applicable matters of the Child Care Planning Guideline have been considered in the Amended DA, as required under cl 23 of the Childcare SEPP. The concurrence of the Department of Education under cl 22(2) of the Childcare SEPP is not required because the Amended DA complies with:

  1. Regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations; and

  2. Regulation 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations.

  1. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a revised BASIX Certificate number 1041097M _02 dated 10 June 2021 has been provided demonstrating compliance with the BASIX SEPP, and Condition 5.4 of the consent requires compliance with this certificate.

  2. In relation to State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) the DA was referred to Transport for NSW (“TfNSW”) by Council on 6 December 2019 in accordance with cl 104(3). On 17 February 2020 TfNSW responded that it did not object to the proposed dwelling density and that the road layout is consistent with SEPP Growth Centres Precinct Plan.

  3. In relation to Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20) the Amended DA has considered the matters under cl 4 of the SREP 20, and conditions of consent are included in relation to water quality and quantity.

  4. In relation to the payment of a State Infrastructure Contribution, pursuant to s 7.23 of the EPA Act, a condition of consent (Condition 6.4) has been included requiring this payment.

Disposal of proceedings in accordance with the parties’ decision

  1. 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’ agreement.

  2. The Court orders:

  1. The Council, as the relevant consent authority has agreed, pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000, to amend Development Application DA-19-01484, with the amended plans and documents uploaded on the NSW Planning Portal on 11 August 2021, and filed with the Court on 26 May 2021, 9 June 2021, 12 July 2021 and 12 August 2021.

  2. The Applicant's written clause 4.6 request prepared by Think Planners dated 8 July 2021 to vary the height control under clause 4.3 of Appendix 12 of the State Environmental Policy (Sydney Region Growth Centres) 2006 is upheld.

  3. The appeal is upheld.

  4. Development Application No. DA-19-01484 (as amended), for the construction of a 6 storey mixed use building (Block A) and a 6 storey residential flat building (Block B) comprising 78 residential units, basement car parking for 159 vehicles, a ground floor centre based child care facility in Block A, signage, stormwater works and landscaping on proposed Lot 8 as approved in DA 18-00159 on Lot 20 and Lot 21 in DP 1191512 and Lot 8 in DP 1245610, known as 1032 Richmond Road, Marsden Park & 232 Grange Avenue, Marsden Park, is approved subject to the conditions at Annexure A.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (383688, pdf)

Ground Floor Architecural Plan (872654, pdf)

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Decision last updated: 01 September 2021

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