Upg 198 Pty Ltd v Camden Council

[2023] NSWLEC 1694

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 198 Pty Ltd v Camden Council [2023] NSWLEC 1694

Hearing dates:

Conciliation conference on 24 October 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $22,000, payable within 28 days.

(3) The Applicant’s written request to vary s 4.3(2) of the State Environmental Planning Policy (Precincts – Western Parklands City) 2021 is upheld.

(4) Development consent is granted to Development Application No. DA/2022/455/1, as amended, for the construction of 4 residential flat buildings comprising 97 units over basement car parking, landscaping and associated works on land legally described as Lot 75 in DP1180577 and known as 11 Ingleburn Road, Leppington NSW 2179, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – s 4.6 written request – height variation – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 29, 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Part 6.2, s 6.13

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

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30, Sch 1

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 5, ss 2.3, 4.1AB, 4.1B, 4.3, 4.4, 4.6, 6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119

Texts Cited:

NSW Department of Planning and Environment Apartment Design Guide 2015

Category:

Principal judgment

Parties:

UPG 198 Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
N Hammond (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/334612

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of development application no. DA/2022/455/1 for construction of a residential development comprising four buildings (four-storey apartment buildings and two storey multi dwellings) containing a total of 100 units with basement car parking, landscaping and associated works (development application) at 11 Ingleburn Road, Leppington legally described as Lot 75 in DP 1180577 (site).

2. The proceedings were set down for a hearing on 24 October 2023. The parties agreed that following the joint conferencing of the experts, further changes to the plans and other documentation and the agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 24 October 2023. I have presided over the conciliation conference.

4. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending Development Application No. DA/2022/455/1 in accordance with the documents listed at [33] (amended application). 

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. I am satisfied that owners consent accompanied the development application.

11. The development application was lodged to the Respondent on 11 May 2022. The Respondent notified the development application between 26 May 2022 to 14 June 2022. No submissions were received.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021

12. The site is subject to the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP Parkland City). Appendix 5 Camden Growth Centres Precinct Plan (Precinct Plan) applies.

13. The site is zoned R3 Medium Density Residential and SP2 Infrastructure (Local Drainage) under the Precinct Plan. Works are not proposed within the SP2 zoned portion of the site. The proposed development for residential flat buildings is permissible with consent. Pursuant to s 2.3, I have had regard to the objectives of the zone.

14. Section 4.1AB Minimum lot sizes for residential development in Zone R2 Low Density Residential and Zone R3 Medium Density Residential of the Precinct Plan, applies to the site. Section 4.1AB (9)(a) provides a minimum lot size of 2,000m² in accordance with the Residential Density Map. The site is 7,517m² as per the Statement of Environmental Effects prepared by Planzone dated 5 April 2022 (SEE). The parties agree and I accept that the minimum lot size is met.

15. Section 4.1B Residential density of the Precinct Plan applies to the site. The parties agree and I accept that the amended application is above the minimum density of 25 dwellings per hectare, at 88.4 dwellings per hectare as shown on the architectural plans prepared by Rothelowman dated 17 October 2023 (architectural plans).

16. Section 4.3 Height of buildings of the Precinct Plan applies, which allows a maximum height of 12m. The amended application exceeds the height limit, with an overall building height for building B/C of 12.28m (a breach of 0.28m or 2.3%) and an overall building height for building D of 12.88m (0.88m or 7.3%). The breaches relate to a portion of the roof and lift overruns.

17. The application is supported by a s 4.6 written request prepared by Think Planners dated 19 October 2023 (written request). The parties agree, and I am satisfied, that the written request justifies the contravention through achieving consistency with the height objectives and that the proposed development is in the public interest.

18. In accordance with s 4.6(5), I have considered the provisions and am satisfied that the contravention will not infringe on those matters.

19. Section 6.1 Public Utility Infrastructure of the Precinct Plan applies to the proposed development. I have considered the provisions of s 6.1, the Qalcheck letter dated 23 October 2023, the SEE and the conditions of consent at Annexure A. The parties agree that water, electricity and sewer is available has been provided for and I accept that the requirements of s 6.1 Public Utility Infrastructure have been satisfied.

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

20. The parties agree and I am satisfied that the amended application is accompanied by a BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy(Biodiversityand Conservation) 2021

21. Chapter 6, Part 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies, as the site is located within the Hawkesbury-Nepean Catchment and also within the South Creek Sub-Catchment area.

22. The parties agree that the relevant flooding, water quality, catchment, vegetation and scenic quality provisions under Part 6.2 and s 6.13 have been addressed by the amended application through the following information:

• SEE;

• Arboricultural Impact Report prepared by Monaco Designs PL dated 22 April 2022;

• Aboriginal Due Diligence Assessment prepared by Apex Archaeology dated 12 November 2021;

• Overland Flow Assessment prepared by Enspire Solutions dated 7 September 2023;

• Geotechnical Site Investigation Report prepared by Geotesta dated 9 November 2021;

• Engineering plans prepared by Enspire Solutions dated 20 October 2023;

• Civil Engineering & Stormwater Management Report prepared by Enspire Solutions dated 25 March 2022;

• Salinity Assessment and Salinity Management Plan prepared by Geotesta dated 13 October 2023.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

23. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment (SEPP 65) Development applies to the proposed development in accordance with cl 4.

24. Clause 28 requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 and the NSW Department of Planning Apartment Design Guide 2015 (ADG). Clause 30(2) requires that adequate regard must be had to the same provisions. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a design statement prepared by a qualified designer in relation to the design quality principles within Sch 1 of SEPP 65 and the ADG.

25. Clause 28(2)(a) requires consideration of advice received from the relevant design review panel. The parties agree that the advice has been addressed by the amended application.

26. The parties agree and I accept that the amended application meets the provisions of SEPP 65 on the basis of the SEPP 65 Design Quality Principles Statement completed by the nominated qualified designer Ben Pomroy (registered architect No 6780) dated 19 October 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. Relevantly, development consent was granted to DA-2021/1820/1 the demolition of existing structures, remediation of land, tree removal, Torrens Title subdivision of land into two lots (one super lot and one SP2 lot), construction of public road, drainage works and associated site works (subdivision consent). The subject site is one of the approved lots under the subdivision consent. The parties agree that the remediation works required under the subdivision consent satisfy the provisions of s 4.6 and that the site is suitable for residential development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

28. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as the amended application includes the installation of a substation. In accordance with s 2.48, the parties agree that the relevant electricity supply authority was notified, and no comments were received.

29. The subject site has a frontage to a classified road and accordingly, s 2.119 of SEPP TI applies. In accordance with s 2.119(2), the parties agree that the amended application meets the requirements based on the information accompanying the amended application (including the Noise and Vibration Impact Assessment prepared by Stantec dated 29 April 2022 and SEE) as:

• Vehicular access is provided to ‘Road 1’ from Mallow Avenue, which is not a classified road;

• The amended application will not generate smoke or dust that would impact on the operation of the classified road; and

• Impacts from the road to the proposed development have been appropriately considered.

Conclusion

30. 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.

31. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

32. 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.

33. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/2022/455/1 to rely upon the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No: TP00.00 Revision P1	Cover Sheet	Rothelowman	17 October 2023
	Drawing No: TP00.01 Revision P2	Development Summary		17 October 2023
	Drawing No: TP00.02 Revision P1	Demolition Plan		17 October 2023
	Drawing No: TP01.01 Revision P2	Proposed Site Plan		17 October 2023
	Drawing No: TP01.02a Revision P6	Level Basement 2		17 October 2023
	Drawing No: TP01.02b Revision P7	Level Basement 1		17 October 2023
	Drawing No: TP01.03 Revision P7	Level Ground		17 October 2023
	Drawing No: TP01.04 Revision P3	Level 1		17 October 2023
	Drawing No: TP01.05 Revision P3	Level 2		17 October 2023
	Drawing No: TP01.06 Revision P3	Level 3		17 October 2023
	Drawing No: TP01.07 Revision P2	Level Roof		17 October 2023
	Drawing No: TP02.01 Revision P2	Elevations		17 October 2023
	Drawing No: TP02.02 Revision P2	Elevations		17 October 2023
	Drawing No: TP02.03 Revision P2	Elevations		17 October 2023
	Drawing No: TP03.01 Revision P3	Sections		17 October 2023
	Drawing No: TP03.02 Revision P2	Sections 02		17 October 2023
	Drawing No: TP03.03 Revision P2	Sections 03		17 October 2023
	Drawing No: TP03.04 Revision P1	Sections 04		17 October 2023
	Drawing No: TP05.01 Revision P1	Shadow Analysis - Plan		17 October 2023
	Drawing No: TP05.02 Revision P1	Shadow Analysis - Plan		17 October 2023
	Drawing No: TP05.03 Revision P2	Shadow Analysis – POV June 21		17 October 2023
	Drawing No: TP05.04 Revision P2	Shadow Analysis – POV June 21		17 October 2023
	Drawing No: TP06.01 Revision P2	Adaptable Units		17 October 2023
	Drawing No: TP06.02 Revision P2	Adaptable Units		17 October 2023
	Drawing No: TP06.03 Revision P2	Storage Plan & Schedule		17 October 2023
	Drawing No: TP06.04 Revision P2	Site Coverage & Communal Open Space		17 October 2023
	Drawing No: TP06.05 Revision P2	Landscape & Deep Soil Coverage		17 October 2023
	Drawing No: TP06.06 Revision P1	GFA		17 October 2023
	Drawing No: TP06.07 Revision P2	Height Plane Diagrams		17 October 2023
	Drawing No: TP06.09 Revision P2	Solar Compliance		17 October 2023
	Drawing No: TP06.10 Revision P2	Cross Ventilation Compliance		17 October 2023
	Drawing No: TP06.11 Revision P2	Cross Ventilation Compliance		17 October 2023
	Drawing No: TP07.01 Revision P1	External Finishes		17 October 2023
	Drawing No: TP10.01 Revision P1	ADG Dimensioned Level Ground		17 October 2023
	Drawing No: TP10.02 Revision P1	ADG Dimensioned Level 1		17 October 2023
	Drawing No: TP10.03 Revision P1	ADG Dimensioned Level 2		17 October 2023
	Drawing No: TP10.04 Revision P1	ADG Dimensioned Level 3		17 October 2023
Renders
2	Building A Entry – View 01		Rothelowman
	Building A Entry – View 02
	Building B-C Entry – View 01
	Building B-C Entry – View 01
	Communal Park Looking South
	Building B-C Entry – View 01
	Building B-C North Elevation
	Communal Park Looking North
Landscape Plans
3	Drawing No. L/00 C	Cover Sheet	A Total Concept	19 October 2023
	Drawing No. L/01 C	Proposed Tree Removal Plan		19 October 2023
	Drawing No. L/02 C	Proposed Street Tree Planting Plan		19 October 2023
	Drawing No. L/03 C	Proposed Street Tree Detail Plan		19 October 2023
	Drawing No. L/04C	Proposed Landscape Plan		19 October 2023
	Drawing No. L/05C	Proposed Planting Plan		19 October 2023
	Drawing No. L/06C	Landscape Concept Images		19 October 2023
	Drawing No. L/07 C	Landscape Concept Images		19 October 2023
	Drawing No. L/08C	Landscape Details		19 October 2023
	Drawing No. L/09C	Landscape Specification		19 October 2023
	Drawing No. L/10 C	Landscape Sections		19 October 2023
Engineering Plans
4	Drawing No 210044-02-DA-C01.01 Revision 5	Cover Sheet and Drawing Schedule	Enspire Solutions Pty Ltd	3 October 2023
	Drawing No 210044-02-DA-C01.01 Revision 7	General Arrangement Plan		20 October 2023
	Drawing No 210044-02-DA-C03.01 Revision 7	Erosion and Sedimentation Control Plan		20 October 2023
	Drawing No 210044-02-DA-C03.21 Revision 6	Erosion and Sedimentation Control Details		3 October 2023
	Drawing No 210044-02-DA-C04.03 Revision 3	Cut and Fill Plan		20 October 2023
	Drawing No 210044-02-DA-C05.01 Revision 8	Stormwater Management Plan Ground Floor Level Sheet 01		20 October 2023
	Drawing No 210044-02-DA-C05.02 Revision 8	Stormwater Management Plan Ground Floor Level Sheet 02		20 October 2023
	Drawing No 210044-02-DA-C05.12 Revision 8	Stormwater Management Plan Basement Level 1 - Sheet 01		20 October 2023
	Drawing No 210044-02-DA-C05.13 Revision 7	Stormwater Management Plan Basement Level 1 - Sheet 02		20 October 2023
	Drawing No 210044-02-DA-C05.21 Revision 5	Stormwater Management Plan Basement Level 2 - Sheet 02		20 October 2023
	Drawing No 210044-02-DA-C06.01 Revision 5	Driveway Longitudinal Section Sheet 01		3 October 2023
	Drawing No 210044-02-DA-C06.02 Revision 4	Driveway Longitudinal Section Sheet 02		20 October 2023
	Drawing No 210044-02-DA-C14.01 Revision 6	Details		20 October 2023
Reports / documents
5	Statement of Changers		Rothelowman	19 October 2023
6	Clause 4.6 Variation – Building Height		Think Planners Pty Ltd	19 October 2023
7	Sepp 65 – Design Quality Principles		Rothelowman	19 October 2023
8	Salinity Assessment and Salinity Management Plan		Geotesta Pty Ltd	13 October 2023
9	Letter regarding Sewer / Potable Water Servicing		Qalchek	23 October 2023
10	Amended BASIX No. 1287746M_05		24 October 2023

Orders:

34. The Court orders:

1. The Appeal is upheld.

2. The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $22,000, payable within 28 days.

3. The Applicant’s written request to vary s 4.3(2) of the State Environmental Planning Policy (Precincts – Western Parklands City) 2021 is upheld.

4. Development consent is granted to Development Application No. DA/2022/455/1, as amended, for the construction of 4 residential flat buildings comprising 97 units over basement car parking, landscaping and associated works on land legally described as Lot 75 in DP1180577 and known as 11 Ingleburn Road, Leppington NSW 2179, subject to the conditions at Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A (321607, pdf)

**********

Decision last updated: 17 November 2023