Land and Environment Court New South Wales Medium Neutral Citation: Hunter Ferdinand Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1270 Hearing dates: Conciliation conference on 16 June 2020 Date of orders: 25 June 2020 Decision date: 25 June 2020 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference - health services facility – amended plans – agreement between the parties – orders Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 64— Advertising and Signage Category: Principal judgment Parties: Hunter Ferdinand Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: McCabe Curwood (Applicant) Bartier Perry (Respondent) File Number(s): 2019/00296727 Publication restriction: Nil Judgment 1. COMMISSIONER: The Applicant, Hunter Ferdinand Property Group Pty Ltd, appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council of Development Application No. SPP-19-00001. The development application, as amended, seeks consent for demolition of existing structures and construction of a 3-storey health services facility including four levels of basement carparking consisting of 101 spaces, landscaping, civil works and signage. The development is proposed at 13-15 Panorama Parade, Blacktown (Lots 5 & 6 in DP 29659). 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 13 September 2019. The parties were unable to reach agreement at the conciliation conference. The Commissioner who presided at this conciliation conference terminated the conciliation conference under s 34(4) of the LEC Act. The Court then fixed the proceedings for hearing. 4. At the commencement of the hearing, the Court heard from two objectors to the development application. Immediately following the objector's evidence, at the request of the parties, the Court arranged a second conciliation conference under s 34(1)(a) of the LEC Act and adjourned the further hearing of the proceedings until after that conciliation conference had been held. Through the conciliation process, the parties have agreed an amended design for the development. Following the second conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The development application was lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). 2. Pursuant to the Blacktown Local Environmental Plan 2015 (LEP2015), the subject site is zoned in SP1 Special Activities and I have had regard to the objectives of the zone in determining the application. A health services facility is permissible with consent in this zone 3. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. A Preliminary Site Investigation of the land has been prepared by Martens Consulting dated March 2019. Consistent with the recommendations of that report, the consent incorporates a requirement that a detailed site investigation be prepared and reviewed by the consent authority prior to the issue of a Construction Certificate. 4. The Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment applies to the land. In determining the application, I have given consideration to the Planning Principles at Part 2 of the instrument. 5. State Environmental Planning Policy No 64 — Advertising and Signage (SEPP 64) applies to the application as signage is proposed along the elevations of the proposed building which is not exempt development and will be visible from a public place. I am satisfied that cl 8 of SEPP 64 is satisfied for the following reasons: 1. The signage is consistent with the objectives of SEPP 64 as set out in cl 3(1)(a) of SEPP 64; and 2. The signage the subject of the development application satisfies the assessment criteria specified in Schedule 1 of SEPP 64. 1. The original development application was placed on notification for 14 days between 1 May 2019 to 14 May 2019. The Council received one submission in response to the notification. The Council re-notified the amended plans early in 2020 and received two submissions in response to the notification. In addition, the Court heard from the two objectors at the commencement of the hearing. I am satisfied that the concerns of the two objectors have been satisfactorily considered through the amendment of the development or the imposition of consent conditions. In particular, the adjoining residents concerns in relation to loss of solar access have been addressed by an amendment to the rear of the development which ensures that four hours of sunlight is retained to their private open space. Further, their concern about the potential for impacts to their property as a result of construction are ameliorated by the requirement of the consent for dilapidation assessment. Finally, the objectors concern about the proximity of the new access to the subject site to their own driveway has been assessed by the Council and is deemed to be acceptable. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend Development Application No. SPP-19-00001 and to rely upon the following amended plans and documents: Architectural Plans prepared by H.A. Design Group Pty Ltd Plan Reference Revision Drawing No Development Details Revision C, 03.12.2019 DA01 Demolition Plan & Proposed Site Plan Revision C, 07.11.2019 DA05 Floor Plan - Basement Level 3 Revision D, 13.05.2020 DA06 Floor Plan - Basement Level 2 Revision D, 13.05.2020 DA07 Floor Plan - Basement Level 1 Revision D, 13.05.2020 DA08 Floor Plan- Ground Level Revision D, 13.05.2020 DA09 Floor Plan - Level 1 Revision E, 13.05.2020 DA10 Floor Plan - Level 2 Revision C, 07.11.2019 DA11 Detail Plans – OSD & Rainwater Tanks Revision D, 04.06.2020 DA12 East & West Elevations Revision C, 13.05.2020 DA13 North & South Elevations Revision C, 07.11.2019 DA14 Overall Section 1 Revision D, 13.05.2020 DA15 Overall Section 2 Revision F, 04.06.2020 DA16 Overall Section 3 Revision E, 13.05.2020 DA17 Overall Section 4 Revision C, 03.12.2019 DA18 3D Views - Sheet 1 Revision B, 03.12.2019 DA19 3D Views - Sheet 2 Revision B, 03.12.2019 DA20 Solar Access Study – Sheet 1 Revision D, 07.11.2019 DA22 Solar Access Study – Sheet 2 Revision D, 07.11.2019 DA23 Solar Access Study – Sheet 3 Revision B, 07.11.2019 DA24 Floor Plan - Basement Level 4 Revision B, 13.05.2020 DA27 Engineering Plans prepared by LAM Consulting Engineers Pty Ltd Drawing Name Job No. Drawing No. Revision Date Cover Sheet, Legend & Drawing Schedule 3547 D00 F 12.05.20 Basement 3 Stormwater Drainage Plan 3547 D01 C 05.03.19 Basement 2 Stormater Drainage Plan 3547 D02 C 05.03.19 Basement 1 Stormwater Drainage Plan 3547 D03 D 12.05.20 Ground Floor Stormwater Drainage Plan 3547 D04 L 13.05.20 Level 1 Stormwater Drainage Plan 3547 D05 E 04.03.20 Roof Stormwater Drainage Plan 3547 D07 A 04.03.20 Stormwater Draiage Sections and Details Sheet 1 3547 D10 D 05.05.20 Stormwater Drainage Sections and Details Sheet 2 3547 D11 E 05.05.20 Stormwater Drainage Sections and Details Sheet 3 3547 D12 H 12.05.20 Stormwater Drainage Sections and Details Sheet 4 3547 D13 I 12.05.20 Erosion and Sediment Control Plan Sheet 1 3547 D15 B 25.02.19 Erosion and Sediment Control Plan Sheet 2 3547 D16 B 25.02.19 Pre Development Street Drainage Catchment Plan and HGL Analysis 3547 D20 B 12.05.20 Pre Development Street Drainage HGL Analysis Longitudinal Section 3547 D21 B 12.05.20 Post Development Street Drainage Catchment Plan and HGL Analysis 3547 D25 B 12.05.20 Post Development Street Drainage HGL Analysis Longtiduinal Section 3547 D26 B 12.05.20 1. The Applicant is to pay the Respondent's costs thrown away on an as agreed or assessed basis pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). 2. The appeal is upheld. 3. Development Application No. SPP-19-00001 (as amended) for the demolition of existing structures and construction of a 3-storey health services facility including 4 levels of basement carparking consisting of 101 car spaces, landscaping, civil works, and signage at Lots 5 & 6 in Deposited Plan 29659, otherwise known as 13-15 Panorama Parade Blacktown NSW 2148 is approved subject to conditions included at Annexure A. ……………………………….. D M Dickson Commissioner of the Court Annexure A (400099, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2020