Volfneuk v Blacktown City Council

[2024] NSWLEC 1793

Land and Environment Court

New South Wales

Medium Neutral Citation:

Volfneuk v Blacktown City Council [2024] NSWLEC 1793

Hearing dates:

Conciliation Conference held on 28 November 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA-23-00646 for the removal of existing vegetation, consolidation of two lots into one lot, construction of 2 x 6 storey residential flat buildings comprising 58 apartments with one level of basement car parking containing 50 car parking spaces, execution of Voluntary Planning Agreement for water quality management and associated civil, stormwater and landscaping works at 52 Luxford Road, Mount Druitt, legally known as Lots 2 and 4 in DP 574410, subject to the conditions of consent at Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Court orders the Applicant to pay the costs of the Respondent council thrown away as a result of the amendment of the application for development consent on 16 September 2024 in the amount of $12,000 within 28 days.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Blacktown Local Environmental Plan 2015, cll 4.3, 5.21, 7.5, 7.7

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.8, 6.9

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

State Environmental Planning Policy (Housing) 2021, s 145, Sch 9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

State Environmental Planning Policy No 65—Design Quality of Residential Flat Development

Texts Cited:

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

Category:

Principal judgment

Parties:

Alexander Volfneuk (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
A Hannam (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/268103

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 refusal of Development Application DA-23-00646 seeking consent for the construction of two residential flat buildings (six storeys) consisting of 58 apartments over one level of basement parking for 50 cars, removal and replacement of trees, stormwater drainage, associated site works and execution of Voluntary Planning Agreement for water quality management (Proposed Development) at 52 Luxford Road, Mount Druitt, legally described as Lots 2 and 4 in DP 574410 (the Site).

2. These proceedings were listed for and commenced as a hearing on 27 November 2024.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 November 2024. I presided over the conciliation conference.

4. 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 and granting development consent to the development application subject to conditions.

5. 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.

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

7. 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 to be provisions of the following environmental planning instruments:

1. Blacktown Local Environmental Plan 2015 (BLEP), cll 4.3, 5.21, 7.5, 7.7;

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), s 4.6;

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), s 2.119;

4. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), Ch 6;

5. State Environmental Planning Policy (Housing) 2021 (Housing SEPP); and

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

8. The parties explained how the jurisdictional prerequisites have been satisfied.

9. The Applicant is the owner of the Site as evidenced in the Class 1 Application: s 23, Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

10. The Site is zoned R4 High Density Residential pursuant to the BLEP on Land Zoning Map LZN_008. The Proposed Development is a permissible land use with consent.

11. The Height of Buildings Map HOB_008 indicates that a maximum building height development standard of 20 metres applies to the Site pursuant to cl 4.3 of the BLEP. The Proposed Development complies with that maximum height as demonstrated in the Height Analysis drawing 908 Rev B dated 19 October 2023.

12. The Site is in a local flooding area and pursuant to cl 5.21 of the BLEP, development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development:

1. is compatible with the flood function and behaviour on the land;

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

4. incorporates appropriate measures to manage risk to life in the event of a flood; and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

13. I accept that the Court can be satisfied of the above matters for the reasons given by the parties’ respective expert stormwater engineers as contained in the Joint Stormwater Engineering Expert Report filed 30 October 2024 (Stormwater JER) in the compliance table at par 12.

14. Pursuant to cl 7.5 of the BLEP, development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

1. the supply of water;

2. the supply of electricity;

3. the disposal and management of sewage;

4. stormwater drainage or on-site conservation; and

5. suitable vehicular access.

15. The parties agree, and the Court is satisfied, that water and electricity supply, as well as services for the disposal and management of sewage, are all available to the Site. The Court is satisfied that stormwater drainage is available in accordance with the agreement of the expert stormwater engineers: Stormwater JER at par 131. Finally, the Court is satisfied that suitable vehicular access is available to the Site having regard to the contents of the Traffic Supplementary Joint Report dated 27 November 2024 and filed in Court on the same date.

16. The Site is identified as “Design Excellence” on the Design Excellence Map DEX_008 pursuant to cl 7.7 of the BLEP. Pursuant to cl 7.7(3) of the BLEP 2015, development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

17. A design review panel has not been constituted for the Blacktown Local Government Area. Referral to such a panel is therefore not required under s 145 of the Housing SEPP.

18. I am of the opinion that the Proposed Development exhibits design excellence having regard to the contents of:

1. Architects Statement in response to State Environmental Planning Policy No 65—Design Quality of Residential Flat Development (and the Apartment Design Guide), Issue E dated October 2023 (Exhibit PS-1, Tab 7);

2. Letter dated 9 September 2024 from Benjamin Black of Avenue Town Planning addressing design excellence (Exhibit PS-1,Tab 12); and

3. A Design Verification Statement, prepared by Graham Bakewell dated November 2024 which has assessed the quality of the design of the development against the design principles as set out in Sch 9 of the Housing SEPP and as required by s 29 of the EPA Regulation.

19. Section 4.6(1) of the Resilience and Hazards SEPP provides for consideration of whether the Site is contaminated and suitable for the proposed use and relevantly provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. 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

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

20. The Applicant relies on a Phase 1 Contaminated Site Assessment dated 22 June 2016, prepared by Environmental Strategies (Class 1 application, Tab 16) and a Detailed Site Investigation dated 18 December 2023, prepared by EIAustralia (Exhibit PS-1,Tab 8). The parties agree and the Court is satisfied that the Site will be suitable for the Proposed Development after remediation is carried out, and that the Site will be remediated before it is used for that purpose. In that regard, the Court notes that the recommendations made by EIAustralia in section 10 at p 32 of the Detailed Site Investigation, are reflected in the conditions of consent at 5.5.3.

21. The following jurisdictional requirements must be met in respect of the Proposed Development under the provisions of the Transport and Infrastructure SEPP because the Site has frontage to a classified road, namely Carlisle Avenue:

1. Section 2.119(2): the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

2. Section 2.120(3): the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

22. The Proposed Development will provide vehicular access to the Site via Luxford Road, which is not a classified road satisfying s 2.119(2)(a) of the Transport and Infrastructure SEPP.

23. In relation to s 2.119(2)(b) of the Transport and Infrastructure SEPP, the Applicant relies on the Traffic Impact and Parking Assessment prepared by Greenview Consulting, dated 1 May 2023 filed with the Class 1 Application at Tab 12 which, together with the Traffic Supplementary Joint Report dated 27 November 2024, demonstrate that the safety, efficiency and ongoing operation of Carlisle Avenue will not be adversely affected by the Proposed Development. The parties’ respective traffic experts agree at pars 17-18 that the impact of development traffic on the road network would be minor, and that the provision of splays on the driveway entry are satisfactory.

24. In relation to section 2.119(2)(c) of the Transport and Infrastructure SEPP, the Applicant relies on the Noise Impact Assessment prepared by Acoustic Logic, dated 27 April 2023, filed with the Class 1 Application at Tab 18. This Noise Impact Assessment addresses measures to ameliorate potential traffic noise within the Site arising from the adjacent classified road and the appropriate measures to ensure that the LAeq levels specified in s 2.120(3) of the Transport and Infrastructure SEPP. Under the conditions of consent at 5.5.1, the Applicant is required to implement all recommendations made in the Noise Impact Assessment.

25. The Site is located in the Hawkesbury-Nepean Catchment and the provisions of Pt 6.2 of the Biodiversity and Conservation SEPP contains the following jurisdictional requirements of which the Court must be satisfied:

1. Section 6.6(2), in relation to water quality and quantity.

2. Section 6.7(2), in relation to aquatic ecology.

3. Section 6.8(2), in relation to flooding.

4. Section 6.9(2), in relation to recreation and public access.

26. The Court is satisfied that the Proposed Development ensures the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised (s 6.6(2) of the Biodiversity and Conservation SEPP) because the parties’ respective stormwater engineers agree and set out in a compliance table how the terms of s 6.2 of the Biodiversity and Conservation SEPP are satisfied (Stormwater JER at par 132). The parties also note that two on-site detention (OSD) tanks are proposed, 100% of roof collection is directed to the OSD tanks and permeable landscape elements are incorporated into the Proposed Development such that the effect of the quality of water (ultimately) entering a natural waterbody will be as close as possible to neutral or beneficial.

27. In relation to s 6.7(2) of the Biodiversity and Conservation SEPP, the Site is not located in or near an aquatic reserve, natural waterbody or wetlands, nor is a controlled activity approval required or a permit for the clearing of riparian vegetation.

28. Section 6.8(2) of the Biodiversity and Conservation SEPP states that development consent must not be granted to development on flood liable land in a regulated catchment unless the consent authority is satisfied the development will not, if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems. The parties agree that the proposed stormwater measures are such that there will not be such a release of pollutants. The parties also agree that the Site is affected by shallow overland flow and not mainstream flood waters, such that there will be no adverse impact as described in s 6.8(2)(b) of the Biodiversity and Conservation SEPP.

29. Similarly, the Court is satisfied of the requirements set out in s 6.9(2) of the Biodiversity and Conservation SEPP having regard to the fact that the Site is not located in close proximity to a natural waterbody.

30. A BASIX certificate pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 was filed with the Class 1 Application at Tab 7 as required by s 27 of the EPA Regulation. An amended BASIX certificate is required if an amendment to a development application will result in the development differing materially from the description in the BASIX that accompanied the original application: s 37(5), EPA Regulation. The parties agree that the amendments do not differ materially from that description.

31. 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. I adopt the reasons given by the parties as set out in this judgment.

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.

Notations:

33. The Court notes:

1. Pursuant to section 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant applied to the Respondent as the consent authority for an amendment to development application DA-23-00646 to rely upon the amended plans and documents referred to below:

Drawing No.	Drawing Name	Prepared by	Rev	Dated
Architectural Plans
A301	Basement Plan	Technik Haus	G	28 November 2024
A302	Site and Ground Floor Plan	Technik Haus	F	28 November 2024
A303	First Floor Plan	Technik Haus	C	25 March 2024
A304	Second Floor Plan	Technik Haus	C	25 March 2024
A305	Third Floor Plan	Technik Haus	C	25 March 2024
A306	Fourth Floor Plan	Technik Haus	C	25 March 2024
A307	Fifth Floor Plan	Technik Haus	C	25 March 2024
A308	Roof Plan (South Building) and Rooftop Terrace Plan	Technik Haus	B	19 October 2023
A309	Roof Plan (North Building)	Technik Haus	C	25 March 2024
A401	West Elevation – Carlisle Avenue	Technik Haus	C	25 March 2024
A402	South Elevation – Luxford Road	Technik Haus	C	25 March 2024
A403	North Elevation	Technik Haus	C	25 March 2024
A404	East Elevation	Technik Haus	C	25 March 2024
A405	South Elevation of North Building – View from courtyards	Technik Haus	C	25 March 2024
A406	North Elevation of South Building – View from courtyards	Technik Haus	C	25 March 2024
A501	Longitudinal Section A	Technik Haus	C	25 March 2024
A502	Cross Section B (South Building)	Technik Haus	C	25 March 2024
A503	Cross Section (North Building)	Technik Haus	B	19 October 2023
A504	Section DD (Ramp)	Technik Haus	E	28 November 2024
A604	Solar Study 1	Technik Haus	C	25 March 2024
A605	Solar Study 2	Technik Haus	C	25 March 2024
A606	Solar Study 3	Technik Haus	C	25 March 2024
A609	Shadow Diagrams June 9am-12pm	Technik Haus	C	25 March 2024
A610	Shadow Diagrams 1pm-3pm	Technik Haus	C	25 March 2024
A701	Calculations	Technik Haus	D	25 March 2024
A702	Deep Soil Calcs	Technik Haus	C	25 March 2024
A703	Common Open Space Cals	Technik Haus	B	25 March 2024
A801	Render 1	Technik Haus	C	25 March 2024
A802	Render 2	Technik Haus	C	25 March 2024
A803	Render 3	Technik Haus	C	25 March 2024
A901	East elevation materials schedule	Technik Haus	B	19 October 2023
A902	North elevation materials schedule	Technik Haus	B	19 October 2023
A903	North Elevation of South Building Materials Schedule	Technik Haus	B	19 October 2023
A904	South Elevation – Luxford Road materials schedule	Technik Haus	B	19 October 2023
A905	South Elevation of North Building Materials Schedule	Technik Haus	B	19 October 2023
A906	West Elevation – Carlisle Avenue Materials Schedule	Technik Haus	B	19 October 2023
A907	Window Schedule	Technik Haus	B	19 October 2023
A908	Height Analysis	Technik Haus	B	19 October 2023
A910	Lift Details	Technik Haus	B	19 October 2023
Landscaping Plans
LPS34 22 – 187	Hardscape Plan	Conzept Landscape Architects	F	9 April 2024
LPS34 22 - 187	Landscape Calculation Plan	Conzept Landscape Architects	F	9 April 2024
LPS34 22 – 187	Landscape Plan-1	Conzept Landscape Architects	F	9 April 2024
GLPS34 22 – 187	Landscape Plan-2	Conzept Landscape Architects	F	9 April 2024
LPS34 22 – 187	Details & Specification	Conzept Landscape Architects	F	9 April 2024
LPS34 22 – 187	Details	Conzept Landscape Architects	F	9 April 2024
LPS23 22 – 187	Sections	Conzept Landscape Architects	F	9 April 2024
Documents
200304	Flood Assessment	Greenview Consulting	H	22/10/2024
24030 Report 001 Rev 1 FERP	Emergency Response Plan	Rienco Consulting	1	25/10/2024
3659	Operational Waste Management Report	Elephants Foot Consulting	L	30/10/2024
Design Verification Statement	Graham Bakewell Architect	F	November 2024

2. Pursuant to section 38(1) of the EPA Regulation, the Respondent approved the application for the amendment.

Orders:

34. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA-23-00646 for the removal of existing vegetation, consolidation of two lots into one lot, construction of 2 x 6 storey residential flat buildings comprising 58 apartments with one level of basement car parking containing 50 car parking spaces, execution of Voluntary Planning Agreement for water quality management and associated civil, stormwater and landscaping works at 52 Luxford Road, Mount Druitt, legally known as Lots 2 and 4 in DP 574410, subject to the conditions of consent at Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Court orders the Applicant to pay the costs of the Respondent council thrown away as a result of the amendment of the application for development consent on 16 September 2024 in the amount of $12,000 within 28 days.

E Espinosa

Commissioner of the Court

Annexure A

Amended Architectural Plans (up to Rev G)

Detailed Site Investigation Report

Flood Assessment

Operational Waste Management Report

Traffic Report

**********

Decision last updated: 11 December 2024