Upg 182 Pty Ltd v Blacktown City Council

[2023] NSWLEC 1737

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 182 Pty Ltd v Blacktown City Council [2023] NSWLEC 1737

Hearing dates:

Conciliation conference on 22 November 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA-21-02226 for the demolition of existing structures, tree removal, subdivision of land into 13 lots, comprising twelve 12 Torrens Title lots and 1 superlot, construction of 12 two-storey dwellings, construction of 11 two-storey townhouses, construction of a public and internal road, civil and stormwater works, landscaping and associated site works on land legally described as Lot 2 in DP810645 and known as 138 Bridge Street, Schofields, NSW, 2762, and Lot 4 in DP 252965 and known as 5 Eos Place, Schofields, NSW, 2762, is determined by the grant of development consent subject to the conditions at Annexure “A”.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 9, ss 9.3, 9.4, 9.5

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

State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 9, s 2.2, 2.3, 2.6, 2.7, 4.1AB, 4.1AF, 4.1B, 4.3, 6.1, 6.2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy Amendment (Water Catchments) 2022, s 6.65

Texts Cited:

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Blacktown Community Engagement Strategy and Community Participation Plan 2022-2024

Category:

Principal judgment

Parties:

UPG 182 Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/306727

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-21-02226 for the demolition of existing structures, tree removal, subdivision of land into 13 lots, comprising 12 Torrens Title lots and 1 superlot, construction of 12 two-storey dwellings, construction of 11 two-storey townhouses, construction of a public and internal road, civil and stormwater works, landscaping and associated site works on land legally described as Lot 2 in DP810645 and known as 138 Bridge Street, Schofields, NSW, 2762, and Lot 4 in DP 252965 and known as 5 Eos Place, Schofields, NSW, 2762 (the site).

2. A s 34 conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 5 April 2023. No agreement was reached. On 31 August 2023, the Applicant was granted leave of the Court to formally amend its DA in response to the Respondent’s Statement of Facts and Contentions (SOFAC) dated 16 December 2022.

3. The Respondent filed its amended Statement of Facts and Contentions (amended SOFAC) with the Court on 22 September 2023. On 17 November 2023, the Applicant was granted leave by the Court to further amend the DA (the amended DA) in response to the amended SOFAC.

4. The matter was listing for hearing on 22 November 2023. At the commencement of the hearing, the parties indicated that a s 34 agreement had been reached, subject to resolving several outstanding conditions. The hearing was adjourned to allow for the draft conditions of consent to be finalised.

5. At the request of the parties, the Court then made an order on 15 November 2023 vacating the hearing and listing the matter for a s 34 conciliation conference. I presided over the conciliation conference.

6. The final signed s 34 agreement with updated Annexure A incorporating the changes to the conditions of consent and a change to the description of the development was filed on 22 November 2023.

7. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

8. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Environmental Planning and Assessment Act 1979

Owner’s consent

11. Owner’s consent was obtained by the Applicant for the lodgement of the DA.

Community Participation (Sch 1, Div 2, 7(1) of the EPA Act)

12. The DA was notified in accordance with the Blacktown Community Engagement Strategy and Community Participation Plan 2022-2024 from 25 January 2022 to 8 February 2022. Three submissions were received in response to that notification.

13. The parties advise that the Court can be satisfied that the issues raised, where appropriate, have been particularised in the Amended SOFAC and adequately addressed in the amended DA and conditions of consent.

Conditions

14. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

15. The amended DA is not for integrated development.

Evaluation under Section 4.15

16. The parties agree that the amended DA can be approved taking into consideration the matters in s 4.15(b) to (e) of the EPA Act, and that matters relevant to s 4.15 (b), (c) and (d) are considered generally in the Statement of Environmental Effects submitted with the DA.

State Environmental Planning Policy (Precincts – Central River City) 2021

17. The State Environmental Planning Policy (Precincts – Central River City) 2021 (Central River City Precincts SEPP) is the relevant environmental planning instrument that applies to the site. In particular Appendix 9 (Schofields Precinct Plan) of the Central River City Precincts SEPP (the Precinct Plan) applies to the site; and

1. The site is zoned R2 Low Density Residential pursuant to s 2.2 of the Precinct Plan; and

1. The proposed subdivision works are permissible under s 2.6 of the Precinct Plan;

2. The proposed demolition works are permissible with consent under s 2.7 of the Precinct Plan;

3. “Dwelling houses” are permissible with consent in the R2 Zone;

4. Section 6.2(2A) (Multi dwelling housing in R2 Zone) provides that “multi dwelling housing” is permissible with consent in the R2 Zone if the dwelling density (per hectare) is not less than 25 dwellings;

5. Section 2.3(2) requires that the consent authority have regard to the objectives of the R2 Zone. I am satisfied that the proposed development is consistent with the objectives for development within the zones in which the development is proposed to be carried out.

2. Part 4 of the Precinct Plan contains principal development standards that apply to the site. Sections 4.1AB (Minimum lot sizes for residential development), 4.1B (Residential Density), and 4.1AF (Exceptions for dwelling houses on small lots) provide a framework for the proposed development of the site; and

1. The parties submit that the amended DA complies with these principal development standards.

3. Section 4.3 (Height of Buildings) of the Precinct Plan applies to the site and prescribes a maximum building height of 9 metres; and

1. The parties advise that the maximum building height of all proposed buildings on the site is less than 9 metres.

4. There is no applicable maximum permitted floor space ratio for the site;

5. Section 6.1 (Public utility infrastructure) of the Precinct Plan applies to the site; and

1. The parties advise that water and sewer, electricity and communication services are available to the site and that required utility clearances will be obtained prior to works commencing on the site;

2. The Respondent has advised that it is satisfied that the essential services will be made available to the proposed development, when required, subject to the agreed conditions of consent.

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

18. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Applicant’s amended development application is accompanied by an updated BASIX certificate (Certificate No. 1260367M prepared by esdesign dated 27 July 2023) which is consistent with the amended application.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation; and

1. The parties advise that the amended DA proposes the removal of 13 trees from the site, and that an Arboricultural Impact Assessment Statement has been prepared to accompany the amended DA;

2. The parties advise that the amended DA provides landscaping embellishing work, including in the form of street trees, which will improve and enhance the Site more than its current existing state; and that the proposed landscaping for the development will positively contribute to the cohesiveness and visual appreciation of the area whilst providing relief from the built form and softening the impact of the amended DA.

20. Former Chapter 9 of the Biodiversity and Conservation SEPP applies to the proposed development (through the savings provisions contained in s 6.65 of the State Environmental Planning Policy Amendment (Water Catchments) 2022. The site is located within the Hawkesbury-Nepean Catchment. Section 9.3(1) provides that development in a Hawkesbury-Nepean conservation area sub-catchment requires development consent. The consent authority must consider the matters in ss 9.4 and 9.5; and

1. The parties advise that the matters for consideration under ss 9.4 and 9.5 of the Biodiversity and Conservation SEPP have been considered in the reports which accompany the Amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out; and

1. A Site Contamination Investigation Report has been prepared for the site which concludes that the site is considered suitable for the proposed land use for residential development;

2. The parties advise that the Court can be satisfied that the Site is suitable for the proposed residential use.

Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (as amended 2021)

22. The Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (as amended 2021) (the DCP) applies to the site. The DCP provides for precinct planning outcomes, neighbourhood and subdivision design, development in residential zones, and includes Schedule 5 – Schofields Precinct.

23. Council identified a number of issues with the original DA not complying with the DCP controls in its SOFAC and amended SOFAC, which have been addressed in the amended DA.

Conclusion

24. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

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 appeal is upheld.

2. Development Application No. DA-21-02226 for the demolition of existing structures, tree removal, subdivision of land into 13 lots, comprising 12 Torrens Title lots and 1 superlot, construction of 12 two-storey dwellings, construction of 11 two-storey townhouses, construction of a public and internal road, civil and stormwater works, landscaping and associated site works on land legally described as Lot 2 in DP810645 and known as 138 Bridge Street, Schofields, NSW, 2762, and Lot 4 in DP 252965 and known as 5 Eos Place, Schofields, NSW, 2762, is determined by the grant of development consent subject to the conditions at Annexure "A".

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 05 December 2023