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

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).
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.
The Respondent filed its amended Statement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Upg 182 Pty Ltd v Blacktown City Council

Details

AGLC: Upg 182 Pty Ltd v Blacktown City Council [2023] NSWLEC 1737
Case: [2023] NSWLEC 1737
Decision Date: 05 December 2023

CaseChat Overview and Summary

Upg 182 Pty Ltd, the appellant, sought a determination from the Land and Environment Court of New South Wales regarding the approval of a development application for the demolition of existing structures, subdivision of land, and construction of residential properties. The respondent, Blacktown City Council, had initially refused the application, leading to the appellant's appeal. The core dispute centred on whether the council's refusal was lawful and whether the proposed development should be approved.

The primary legal issue before the court was whether the council's decision to refuse the development application was justified. This involved examining whether the refusal was based on relevant considerations, whether the applicant had complied with the necessary planning instruments, and whether the council's decision was unreasonable. The court needed to determine if the proposed development aligned with the objectives of the local environmental plan and if it would result in unacceptable impacts on the environment and neighbouring properties.

The court found that the council's refusal was not supported by the evidence and was unreasonable. The applicant had demonstrated that the proposed development was consistent with the relevant planning instruments and would not result in significant adverse impacts on the environment or neighbouring properties. The court also noted that the development would contribute positively to the local community by providing additional housing. As such, the appeal was upheld, and the development application was granted subject to specific conditions to mitigate any potential adverse impacts.

Orders

Orders of the court

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”.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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