UPG 137 Pty Ltd v Blacktown City Council
[2023] NSWLEC 1410
•01 August 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: UPG 137 Pty Ltd v Blacktown City Council [2023] NSWLEC 1410 Hearing dates: Conciliation conference held on 7 July 2023 Date of orders: 01 August 2023 Decision date: 01 August 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA-22-00558, as amended, which seeks Torrens title subdivision of land into 50 lots including two (2) allotments to be utilised as temporary detention basins, demolition of existing structures, construction of 48 x two-storey dwellings and public roads, landscaping and associated site works on Lot 2 DP 201229, known as 158 Bridge Street, Schofields, Lot 1 DP 201229, known as 156 Bridge Street, Schofields, Lot 192 in DP 819319, known as 154 Bridge Street, Schofields and Lot 20 DP 12445, known as 148 Bridge Street, Schofields, is determined by the grant of consent subject to the conditions of consent contained at Annexure A.
(3) The applicant is to pay the respondent’s costs thrown away in the agreed amount of $1500 as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.
Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – construction of dwellings – engineering considerations - conciliation conference conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Land and Environment Court Act 1979, s 34
State Environment Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 9, s 9.2,
State Environmental Planning Policy (Precincts-Central River City) 2021, App 9, ss 2.3, 4.1AB
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.121
Texts Cited: Blacktown City Council Growth Centre Precincts Development Control Plan 2010
Category: Principal judgment Parties: UPG 137 Pty Ltd (Applicant)
Blacktown City Council (Respondent)Representation: Counsel:
Solicitors:
J Smith (Applicant)
D Le Breton (Solicitor) (Respondent)
Macpherson Kelley (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2023/313538 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA-22-00558 (the DA) by the Blacktown City (hereafter the Council) which, as amended, seeks Torrens title subdivision into 50 lots including two (2) allotments that will be utilised as temporary onsite detention (OSD) basins, demolition of existing structures, construction of 48 x two-storey dwellings and public roads, landscaping and associated site works on Lot 2 DP 201229, known as 158 Bridge Street, Schofields, Lot 1 DP 201229, known as 156 Bridge Street, Schofields, Lot 192 in DP 819319, known as 154 Bridge Street, Schofields and Lot 20 DP 12445, known as 148 Bridge Street, Schofields (hereafter together the site).
Background
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The DA was lodged with Council on 9 May 2022. The original DA was notified to residents, with no submissions received. The DA was referred to Transport for NSW (TfNSW), pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.
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Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held in person. It is noted that I attended a site view for the hearing relating to this appeal held on 7 July 2023, which was adjourned and then vacated after an agreement was filed.
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Prior to the conciliation, the Court granted leave to amend the DA on 11 May 2023, consistent with a Notice of Motion filed with the Court on 4 May 2023.
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During conciliation, the Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).
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Based on the amendments to the DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise the Court that the contentions of Council have been considered and are resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA-22-00558, with conditions as described in Annexure A.
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Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA-22-00558, subject to conditions in Annexure A.
Jurisdictional prerequisites
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Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:
State Environmental Planning Policy (Precincts-Central River City) 2021 (SEPP Precincts):
Appendix 9 (Schofields Precinct Plan) of the SEPP Precincts relates to the site and provides relevant provisions in consideration of the DA.
The site is located on land zoned as R2 Low Density Residential, pursuant to s 2.3 of Appendix 9 of the SEPP Precincts. The proposed subdivision of lots and construction of multi-dwellings with associated civil works is permissible with consent in this zone, and the proposed dwelling density is consistent with the Residential Dwelling Map, described in s 4.1AB. The amended DA is supported by relevant documents, together with agreed conditions of consent which sufficiently address all the relevant objectives, aims, standards and requirements of the SEPP Precincts, and specifically Appendix 9.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):
The contamination status of the site must be considered, prior to grant of consent. The Council has assessed that the site is suitable for residential use, based on its historic use and documents that support the DA, which together with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.
State Environment Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity)
Based on the proposed clearing of the site, the DA is subject to consideration of the provisions of the SEPP Biodiversity, specifically Chapter 2. The DA is supported by an Aboricultural Impact Assessment Report, prepared by Tree Survey Pty Ltd, dated 24 May 2023. The amended DA addresses the relevant provisions of Chapter 2.
The site is located within land in catchment of the Hawkesbury-Nepean River, and based on the date of DA submission to Council, Chapter 9 of the SEPP Biodiversity is relevant for consideration. The DA is supported by a Statement of Environment Effects, with an Addendum, prepared by Think Planners, dated 5 July 2023. Relevantly, the requirements of s 9.2 are considered.
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):
The site is adjacent to Schofields Road. The strip of land adjacent to the site and between Schofields Road is owned by TfNSW. Pursuant to s 2.121 of the SEPP Infrastructure, the DA was referred to TfNSW. On 21 June 2022 and 9 June 2023, TfNSW advised they had no objections to the (amended) DA, provided no works were undertaken on their land.
Council engineers have assessed the DA and consider that the proposed road network and traffic loads are acceptable.
Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (DCP):
The original DA was publicly notified in accordance with the DCP, with no submissions received. The relevant requirements of the DCP are generally complied with.
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Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners relevant to the amended DA.
Grant of consent
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In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.
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The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention have been addressed by the amendments made and supporting documents to the application.
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I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-22-00558 should be granted consent, as it addresses the relevant requirements of the EPA Act.
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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.
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The Court notes that:
Blacktown City Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA-22-00558, as follows:
| Drawing No and Revision | Title | Prepared by | Date | |
| Architectural Plans | ||||
| 1 | DA01, Revision 11 | Site Analysis Compliance Table | The Bathla Group | 7 July 2023 |
| DA02, Revision 11 | Subdivision Plan | 7 July 2023 | ||
| DA03, Revision 11 | Site Plan | 7 July 2023 | ||
| DA04, Revision 11 | Type Plan | 7 July 2023 | ||
| DA05, Revision 11 | Ground Floor Plan | 7 July 2023 | ||
| DA06, Revision 11 | First Floor Plan | 7 July 2023 | ||
| DA07, Revision 9 | Elevations/Sections | 4 July 2023 | ||
| DA08, Revision 11 | Shadow Analysis | 7 July 2023 | ||
| DA09, Revision 11 | Shadow Analysis 1 | 7 July 2023 | ||
| DA10, Revision 11 | Bin Collection Plan | 7 July 2023 | ||
| DA11, Revision 1 | Swept Paths | 7 July 2023 | ||
| DA12, Revision 11 | On-Street Parking Plan | 7 July 2023 | ||
| S1, Revision 1 | Section 1 (U7&32) | 4 July 2023 | ||
| Site section and Retaining Walls | ||||
| S2, Revision 1 | Section 2 (U8 & 30) | 4 July 2023 | ||
| S3, Revision 1 | Section 3 (U9 & 10, 28 & 29) | 4 July 2023 | ||
| S4, Revision 1 | Section 4 (U11&12, U26 & 27) | 4 July 2023 | ||
| S5, Revision 1 | Section 5 (U13 & 14, U 24 & 25) | 4 July 2023 | ||
| S6, Revision 1 | Section 6 (U15 & 16, U22 & 23) | 4 July 2023 | ||
| S7, Revision 1 | Section 7 (U17 & 18) | 4 July 2023 | ||
| S8, Revision 1 | Section 8 (U18 &19) | 4 July 2023 | ||
| S9, Revision 1 | Section 9 (U20 & 21) | 4 July 2023 | ||
| S10, Revision 1 | Section 10 (U43 & 44) | 4 July 2023 | ||
| S11, Revision 1 | Section 11 (U45 & 46) | 4 July 2023 | ||
| S12, Revision 1 | Section 12 (U47 & 48) | 4 July 2023 | ||
| S13, Revision 1 | Section 13 (U49 & 50) | 4 July 2023 | ||
| Engineering Plans | ||||
| 2 | 004, Revision 01 | Retaining Wall Layout Plan | Orion Consulting | 4 July 2023 |
| 005, Revision 01 | Retaining Wall Typical Cross Sections | 4 July 2023 | ||
| 000, Revision G | Cover Sheet | 7 July 2023 | ||
| 001, Revision G | General Layout Plan, Notes & Legend | 7 July 2023 | ||
| 002, Revision F | Demolition Plan | 7 July 2023 | ||
| 003, Revision G | Site Regrading Plan | 7 July 2023 | ||
| 004, Revision F | Site Regrading Sections | 7 July 2023 | ||
| 100, Revision G | Sediment & Erosion Control Plan | 7 July 2023 | ||
| 200, Revision G | Engineering Plan | 7 July 2023 | ||
| 201, Revision D | Retaining Wall Layout Plan | 7 July 2023 | ||
| 250, Revision F | Finished Floor-Level Plan | 7 July 2023 | ||
| 300, Revision C | Road Typical Cross Sections & Details | 7 July 2023 | ||
| 400, Revision G | Catchment Plan | 7 July 2023 | ||
| 500, Revision F | Street Tree Plan | 7 July 2023 | ||
| SK002, Revision A | Typical Side Access and Drop Edge Beam Detail | 27 June 2023 | ||
| Reports / documents | ||||
| 3 | Supplementary Statement of Environmental Effects | Think Planners | 6 July 2023 | |
| 4 | BASIX Certificate No. 1263623M_04 | Es2 Design | 27 June 2023 | |
| 5 | NatHERS Certificate No. Y0URMYOGXR | Es2 Design | 27 June 2023 | |
| 6 | DA Acoustic Assessment, Revision 1 | Acoustic Logic | 6 July 2023 | |
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Amendments to the DA were filed with the Court on or before 7 July 2023.
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The Court orders that:
The appeal is upheld.
Development Application DA-22-00558, as amended, which seeks Torrens title subdivision of land into 50 lots including two (2) allotments to be utilised as temporary detention basins, demolition of existing structures construction of 48 x two-storey dwellings and public roads, landscaping and associated site works on Lot 2 DP 201229, known as 158 Bridge Street, Schofields, Lot 1 DP 201229, known as 156 Bridge Street, Schofields, Lot 192 in DP 819319, known as 154 Bridge Street, Schofields and Lot 20 DP 12445, known as 148 Bridge Street, Schofields, is determined by the grant of consent subject to the conditions of consent contained at Annexure A.
The applicant is to pay the respondent’s costs thrown away in the agreed amount of $1500 as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.
Sarah Bish
Commissioner of the Court
22.313538 Annexure A
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Decision last updated: 01 August 2023
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