Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1358 Hearing dates: Conciliation conference on 5 August 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant's written clause 4.6 request to vary the height control under clause 4.3 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 in respect of the development on proposed Lot 9, prepared by GNL Planning dated 2 July 2020, is upheld. (2) The appeal is upheld. (3) Development Application No. SPP 17-00024, for the construction of six residential flat buildings with basement car parking on 3 super lots created from a separate subdivision (DA-16-03182), stormwater drainage and landscaping works, on proposed lots 5, 9 and 11 in the re-subdivision of Lot 4 DP1245610, otherwise known as 1086 Richmond Road, Marsden Park, is approved subject to the conditions at in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Reid (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2019/294690 Publication restriction: No Judgment 1. COMMISSIONER: Universal Property Group Pty Limited (the Applicant) has appealed the deemed refusal by Blacktown City Council (the Respondent) of its development application No. SPP 17-00024, for the construction of six residential flat buildings with basement car parking on 3 super lots created from a separate subdivision (DA-16-03182), stormwater drainage and landscaping works (the Proposed Development), on proposed lots 5, 9 and 11 in the re-subdivision of Lot 4 DP1245610, otherwise known as 1086 Richmond Road, Marsden Park, (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. 3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. On 1 July 2020, the Applicant filed and served a Notice of Motion seeking leave to rely upon amended plans and documents in these proceedings, and on 8 July 2020, leave was granted to the Applicant to rely on the amended plans and documents filed with the Notice of Motion. 5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 5 August 2020, and I presided over that conciliation conference. 6. 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 consent to the Applicant's development application, subject to conditions. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. the Subject Site is zoned R3 Medium Density Residential and SP2 Infrastructure – Local Road under the provisions of Appendix 12 Blacktown Growth Centres Precinct Plan (BGCPP) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) and the Applicant's Proposed Development is permissible with consent on the Subject Site; 2. the Proposed Development (as amended): 1. has a maximum height of 23.16m and so does not comply with the 21m maximum height of buildings (HOB) development standard at cl 4.3 of BGCPP of the Growth Centres SEPP. The exceedance of the HOB development standard is associated with a centrally located lift overrun on the so-called Lot 9 element of the Proposed Development. The Applicant has prepared a written request under the provisions of cl 4.6 of BGCPP and the Parties submit that it is well grounded because: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as the objectives of the HOB development standard in cl 4.3 of BGCPP are achieved notwithstanding the non-compliance; 2. there are sufficient environmental planning grounds to justify contravening the development standard, as the contravention will enable the Proposed Development to fulfil a need to provide equitable access to the rooftop communal open space, and it is consistent with the following objects of the EP&A Act; … (c) to promote the orderly and economic use and development of land, and … (g) to promote good design and amenity of the built environment, … 1. the Proposed Development will be in the public interest because it is consistent with the objectives of the HOB development standard within cl 4.3 of the BGCPP and the objectives for development on the R3 Zone are applicable to the portion of the Subject Site on which the Proposed Development is to be carried out. 1. does not contravene any other development standard in the BGCPP, and complies with the provisions of cl 4.4 (Floor space ratio), cl 5.9 (Preservation of trees or vegetation), and cl 6.1(1) (Public utility infrastructure) of the BGCPP. 1. a revised BASIX Certificate has been provided demonstrating compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 2. the considerations under cl 7 of State Environmental Planning Policy No 55—Remediation of Land have been satisfied, noting that: 1. the Applicant commissioned a Detailed Contamination Site Investigation Report by Geotesta Pty Ltd dated 9 January 2017. The assessment confirms that the Subject Site is suitable for the proposed land use for residential development but recommends additional sampling to be carried out after removal of the stockpiling materials on the Subject Site and also demolition of the existing buildings and shed; 2. Condition 4.6.2 of consent imposes a condition that the recommendations outlined in the Site Contamination report must be carried out. 1. pursuant to s 7.23 of the EP&A Act, a condition of consent is proposed that requires the payment of Special Infrastructure Contribution (see Condition 5.2.1); 2. the matters requiring consideration under cl 4 of the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20) have been considered, and conditions of consent have been proposed in relation to the management of water quality and quantity related to the Proposed Development; 3. the Subject Site is adjacent to Richmond Road, which is a classified road under the control of Transport for NSW (TfNSW), vested in the Respondent Council as roads authority under s 145 of the Roads Act 1993, and: 1. the Proposed Development is subject to the provisions of cl 104 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) as it is of a kind specified in Column 1 of the Table to Schedule 3 of the SEPP Infrastructure; and 2. in accordance with cl 104(3), the original development application was referred to TfNSW for comment. On 10 October 2017, TfNSW advised that it had no objection to the development subject to conditions which have been included in the conditions of consent. 1. The Respondent also advised that the Applicant's development application lodged with Blacktown City Council was placed on notification for 14 days between 20 November 2019 and 4 December 2019. The Council received no submissions in response to the notification period. 2. Having considered the advice of the Parties, provided above at [8] and [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further 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. 4. 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. 5. The Court orders that: 1. The Applicant's written clause 4.6 request to vary the height control under clause 4.3 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 in respect of the development on proposed Lot 9, prepared by GNL Planning dated 2 July 2020, is upheld. 2. The appeal is upheld. 3. Development Application No. SPP 17-00024, for the construction of six residential flat buildings with basement car parking on 3 super lots created from a separate subdivision (DA-16-03182), stormwater drainage and landscaping works, on proposed lots 5, 9 and 11 in the re-subdivision of Lot 4 DP1245610, otherwise known as 1086 Richmond Road, Marsden Park, is approved subject to the conditions at in Annexure A. …………………………….. M Chilcott Commissioner of the Court Annexure A (953081, 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: 12 August 2020