Upg 309 Pty Ltd v Blacktown City Council

[2023] NSWLEC 1538

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 309 Pty Ltd v Blacktown City Council [2023] NSWLEC 1538

Hearing dates:

Conciliation conference on 7 September 2023

Date of orders:

19 September 2023

Decision date:

19 September 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to amend Development Application No. DA-22-00600 and to rely upon the documents listed in Annexure A.

(2) The written request dated 6 September 2023 prepared by The Bathla Group to vary clause 4.3(2) of Blacktown's Local Environmental Plan 2015 is upheld.

(3) The appeal is upheld.

(4) Development Application No. DA-22-00600, as amended, for the demolition of existing structures, consolidation of lots and construction of a 7-storey residential flat building with two (2) basement levels and a rooftop communal space, comprising of 47 units and 96 car parking spaces, with associated landscaping and civil works on land legally described as Lot 9, 10 and 11 in DP28045 and known as 15, 17 and 19 Durham Street, Mount Druitt, is determined by the grant of development consent subject to the conditions at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building within R4 High Density Residential zone – residential apartment development – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Blacktown Local Environmental Plan 2015, cll 4.3, 4.6, 7.5, 7.7

Environmental Planning and Assessment Act 1979, ss 1.3,4.15, 4.16, 8.7, 4.17

Environmental Planning and Assessment Regulation 2021, ss 3, 29, 38

Land and Environment Court Act 1979, s 34

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

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

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

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

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

UPG 309 Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Fozzard (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Bilias & Associates

File Number(s):

2022/331030

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A residential flat building comprising 51 apartments, basement car parking, rooftop open space and associated civil and landscaping works is proposed at a site known as 15-19 Durham Street, Mount Druitt.

2. To this end, the Applicant in these proceedings, UPG 309 Pty Ltd, lodged development application DA-22-00600 (the DA) with Blacktown City Council on 19 May 2022 seeking consent for the same.

3. The DA was notified between 22 June – 6 July 2022, with 3 public submissions resulting.

4. As the DA was otherwise undetermined, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. On 25 July 2023, the Applicant amended the DA by relying on amended plans and other documents (the Amended DA), on which experts in certain disciplines conferred in the preparation of joint expert reports.

6. As a result of joint conferencing between experts on the Amended DA in the disciplines of town planning, stormwater, waste, and landscape and arboriculture, and the further amendment of plans and other documents, the parties agree that contentions pressed by the Respondent in this matter have been resolved.

7. Accordingly, while the matter was initially listed before me for hearing, the parties sought the matter be re-allocated by the Court under s 34 of the Land and Environment Court Act 1979 (LEC Act).

8. On 7 September 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the LEC Act at which I presided.

9. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 7 September 2023, in accordance with s 34(10) of the LEC Act.

10. 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, with respect to the following environmental planning instruments that must be satisfied before this function can be exercised:

1. Blacktown Local Environmental Plan 2015 (BLEP)

2. State Environmental Planning Policy No 65 – Design quality of residential apartment development (SEPP 65)

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

4. State Environmental Planning Policy (Resilience and Hazards) 2021

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

11. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

12. The site is located within an R4 High Density Residential zone, according to the BLEP, in which residential flat buildings are permitted with consent, where consistent with the following objectives for development in the zone:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

•  To permit residential flat buildings in locations close to public transport hubs and centres.

13. According to the height of buildings development standard at cl 4.3(2) of the BLEP, a maximum height of 26m applies to the site.

The proposed development exceeds the height standard

14. The proposed development exceeds the height standard and the Applicant relies on a written request, prepared in accordance with cl 4.6 of the BLEP. The written request states the exceedance is limited to the lift overrun and mechanical plant, having an exceedance of 2.08m, and a roof element that has an exceedance of 791mm.

15. I am satisfied that consent can be granted, notwithstanding the exceedance of the height standard at cl 4.3 of the BLEP. The lift and stair structure provide access to the roof top communal area, with some degree of shade and shelter provided by the roof element – all of which is located centrally on the rooftop and well setback from the perimeter of the building that otherwise complies. In particular, I am satisfied, as I am required to be by cl 4.6 of the BLEP, that:

1. The written request demonstrates that compliance with the height standard is unreasonable or unnecessary as the proposed development otherwise achieves the objectives of the height standard, notwithstanding the exceedance as the impact of the exceedance is minimised by its central position, is compatible in height, bulk and scale, with adjoining development in a location close to Mt Druitt railway station and to local shops.

2. The written request advances environmental planning grounds that are sufficient to justify the contravention of the height standard inasmuch as the exceedance is not visible from the public domain, provides compliant access to communal open space, comprises a portion of access, shade and screening elements only, and so not habitable space, and is consistent with s 1.3(g) of the EPA Act to promote good design and amenity of the built environment.

3. That as the proposed development is consistent with the objectives of the height standard and of the R4 zone, it is in the public interest, pursuant to cl 4.6(4)(a)(ii) of the BLEP.

16. I have also considered whether the contravention of the height standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the BLEP and I find no grounds on which the Court should not uphold the written request.

Blacktown Local Environmental Plan 2015

17. The proposed development proposes to augment existing electricity supply by the installation of an external, pad-mounted substation on the site. On this basis, and after consideration of the Stormwater Concept Plans prepared by Enspire, and the swept path analysis undertaken by Varga Traffic Planning, I am satisfied that those essential services set out at cl 7.5 of the BLEP are available to the site.

18. The provision of stormwater drainage (cl 7.5(d)) on the site relies on the relocation of existing drainage, necessitating the removal of a pipe, and the construction of new pits on land to the north of the subject site, identified as Lot 12 in DP 28045. The relevant pipes and pits are identified on civil engineering plan 230039-00-DA-C05.03 Revision 6, and a title search confirms Lot 12 is Council land in respect of which the Respondent provides its consent. Condition 21.19 of the agreed conditions of consent identifies the form of easement or restriction required to be provided by the Applicant.

19. Clause 7.7 of the BLEP precludes the grant of consent unless the consent authority considers that the development exhibits design excellence, within terms set out at subcl (4). The planning and urban design experts agree that the Final Amended DA exhibits design excellence, but for certain matters that are otherwise addressed in the joint expert report of the waste experts.

20. I have also considered the statement prepared by the architectural practice, DesignInc, on its behalf titled ‘Architecture Design – Design Excellence’ dated 22 June 2023 (Exhibit B, Tab 7) that allows the Respondent, and the Court, to have regard to those matters at cl 7.7(4)(a)-(f) of the BLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. As the site is within the Hawkesbury-Nepean River catchment, certain provisions of the Biodiversity SEPP apply to the proposed development, including:

1. Chapter 2 permits the clearing of vegetation under certain circumstances. An Arboricultural Impact Assessment prepared by Monaco Designs dated 28 October 2021, and the relevant experts agree the extent of tree removal is acceptable (Exhibit 5).

2. When the repeal of certain provisions of the Biodiversity SEPP, and their saving shortly thereafter by State Environmental Planning Policy Amendment (Water Catchments) 2022, is understood, Ch 9 of the Biodiversity SEPP is agreed to apply. I have considered the general planning considerations set out in s 9.4, and the specific planning policies and related recommended strategies set out in s 9.5. On the basis of the following, I consider those matters to be sufficiently addressed:

1. Statement of Environmental Effects prepared by The Bathla Group dated May 2022 (Exhibit B, Tab 10);

2. Aboriginal Due Diligence Assessment prepared by Apex Archaeology dated December 2021 (Exhibit A, Tab 11);

3. Stage 1 – Preliminary Site Investigation Report prepared by Geotesta dated 25 January 2022 (Exhibit A, Tab 13);

4. Geotechnical Site Investigation prepared by Geotesta dated 27 January 2022 (Exhibit A, Tab 14);

5. Civil engineering plans prepared by Enspire Solutions dated 5 September 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider whether the land is contaminated and requires remediation. Having regard to the conclusions and recommendations contained in the Preliminary Site Investigation report prepared by Geotesta dated 25 January 2022, I accept that the site is suitable for the purpose for which development is proposed.

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

23. Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 requires the application be accompanied by a statement by a qualified designer, defined at s 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement is required by s 29 of the EPA Regulation to verify matters that are similar to matters at cl 28(2)(b) and (c) of SEPP 65 that must be taken into consideration when determining a development application for residential apartment development.

24. While the statements prepared by Mr Ian Armstrong (Arch Reg No 7260), dated 12 December 2021 and 18 July 2023 departed, for whatever reason, from the requirements of s 29 of the EPA Regulation, the Court was later provided with a conforming statement that satisfies me that the statement dated 6 September 2023 does now conform, and so permits the Court to take into consideration those matters at cl 28(b) and (c) of SEPP 65.

25. For completeness, it is relevant to state here that the Respondent does not, for whatever reason, have a Design Review Panel from which advice can be taken (cl 28(2)(a)).

26. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

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

27. The application is accompanied by a BASIX certificate (Cert No 1297802M_04, dated 30 August 2023) prepared by SLR Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Consideration of public submissions

28. Three public submissions are in evidence (Exhibit 8) that I accept have been considered in the Final Amended DA. In particular, I note:

1. The Acoustic Impact Assessment prepared by Acoustic Logic, dated 7 September 2023 has been amended to consider the relevant noise criteria at the boundary with the adjoining development to the west, 21-23 Durham Street, with the conclusion that noise generated by waste collection and loading dock activities complies.

2. Landscape plans prepared by A Total Concept Landscape Architects dated 5 September 2023 and the agreed conditions of consent, have revised the species of landscape planting to the west such that the screen to the loading dock area is now shown with species capable of growing to a natural height of 5m.

Conclusion

29. 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.

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. The Court notes that:

1. The Respondent, as the relevant consent authority has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA-22-00600 by relying upon the amended plans and documents (Amended Development Application) set out in Annexure A.

2. The amended plans and documents referred to in Annexure A were filed with the Court on 7 September 2023.

Orders

32. The Court orders that:

1. Leave is granted for the Applicant to amend Development Application No DA-22-00600 and to rely upon the documents listed in Annexure A.

2. The written request dated 6 September 2023 prepared by The Bathla Group to vary clause 4.3(2) of Blacktown's Local Environmental Plan 2015 is upheld.

3. The appeal is upheld.

4. Development Application No DA-22-00600, as amended, for the demolition of existing structures, consolidation of lots and construction of a 7-storey residential flat building with 2 basement levels and a rooftop communal space, comprising of 47 units and 96 car parking spaces, with associated landscaping and civil works on land legally described as Lot 9, 10 and 11 in DP28045 and known as 15, 17 and 19 Durham Street, Mount Druitt, is determined by the grant of development consent subject to the conditions at Annexure B.

T Horton

Commissioner of the Court

**********

Annexure A (167901, pdf)

Annexure B (459195, pdf)

Decision last updated: 19 September 2023