Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1369 Hearing dates: Conciliation conference on 10 July 2020 Date of orders: 18 August 2020 Decision date: 18 August 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [25] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 (Design Quality of Residential Flat Development) State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Cases Cited: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1351 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Simmington (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/306701 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (Council) of Development Application No DA-19-00819 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates a 3,494m2 parcel of land identified as part Lot 62 DP1196729 and part Lot 2 DP505790 at 226-228 Grange Avenue, Marsden Park (the Site). It is located on the north-eastern corner of the intersection of Grange Avenue and Richmond Road. 3. The Site may also be described as Lot 26 in the proposed subdivision of Lot 62 DP1196729 and Lot 2 DP505790. The subdivision creating the proposed Lot 26 forms part of the development application known as DA-19-00123 (the DA creating Lot 26) that was also the subject of an appeal to the Court (Proceedings no. 2019/208878). I was the presiding Commissioner in that matter, which involved the same parties (Universal Property Group Pty Ltd and Blacktown City Council) as the parties to the subject proceedings. The Court granted consent, subject to conditions, to the DA creating Lot 26 by way of orders made under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 10 August 2020 (Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1351). 4. The consent to the DA creating Lot 26 was subject to numerous conditions, including deferred commencement conditions (Conditions 1.1.1 to 1.1.4) which must be satisfied before that consent is operable. 5. The DA creating Lot 26 also relevantly includes consent for the removal of trees and demolition of structures on the Site, and the construction of a new road (Road 5) forming the northern boundary of the Site, and drainage works. The new road will provide access to the development proposed in the DA, and it is therefore integral to its delivery and occupation by future residents and users of the child care centre on the Site. 6. The DA, as originally lodged with the Council on 5 June 2019, sought consent for a mixed use development involving the construction of a six-storey building that contained: 1. A residential flat building with pedestrian access at ground level and a total of 45 units (on levels 1 to 5), full rooftop communal open space on the level 6 rooftop, and basement car park over two levels, with its own vehicular access, accommodating 68 car spaces. 2. A 100 place child care facility (on ground level), with its own single-level basement car park and separate vehicular access. Twenty-six car spaces were provided in the child care carpark basement, and six spaces were provided as on-grade spaces external to the building. Consent was also sought for signage associated with the child care centre. 1. The DA was based on architectural plans prepared by The Bathla Group dated 15 December 2018 (the Revision A plans). The DA was advertised from 17 to 30 July 2019 and one objection was received. The Applicant filed this Class 1 Application with the Court on 1 October 2019. On 22 November 2019 the Council filed with the Court its Statement of Facts and Contentions (SOFC), detailing 10 matters in contention. 2. The Court arranged two conciliation conferences between the parties in accordance with the provisions of s 34(1) of the LEC Act. I presided over both conciliation conferences. The first conciliation conference was held on 15 January 2020. There was no objector wishing to speak on site and, as I had viewed the Site on 29 October 2019 as part of the conciliation conference for the DA creating Lot 26 (matter 2019/208878), it was agreed between the parties that a view of the Site was not necessary. The first conciliation conference was terminated by me on 20 February 2020 in circumstances where the parties could not reach an agreement. 3. Following discussions between the parties at the first conciliation conference, and in response to matters raised in the Council's Statement of Facts and Contentions (SOFC), on 3 March 2020 the Applicant filed a Notice of Motion with the Court seeking leave to amend the DA and rely on amended plans also prepared by The Bathla Group, and other documents. On 12 March 2020 leave was granted by the Court to rely on the amended plans and documents listed in the Applicant's Notice of Motion filed on 3 March 2020. 4. In response to the amended plans, on 27 March 2020 the Council filed and served an Amended Statement of Facts and Contentions (Amended SOFC) which essentially reduced the number of contentions to one. The principal remaining contention was that consent to the DA, as amended, should not be granted as the DA to create Lot 26 had not been approved, resulting in uncertain revised ground levels arising from the new road construction, and flow on consequences. 5. The second conciliation conference was held on 10 July 2020 at which an in-principle agreement was reached. The date of the second conciliation conference was one day after the conciliation conference at which an agreement was reached, pursuant to s34(3) of the LEC Act, for the DA creating Lot 26, thereby resolving the outstanding matter in contention. The final s34 agreement for the subject matter was filed with the Court on 23 July 2020. It is based on the plans filed with the Court on 3 March 2020, as listed in Condition 2.1.1 in Annexure A to the s34 agreement, being the agreed Conditions of Consent. 6. The main changes between the plans as originally submitted to the Council on 5 June 2020 and the plans the subject of the s34 agreement are: 1. The child care centre has been reduced in area and redesigned to, amongst other things, remove the porte couchere and ground level parking spaces, relocate the child care facility's vehicular access ramp to the basement car park, relocate the outdoor areas and reduce the number of children from 100 to 80. 2. The residential flat building component has been redesigned to relocate the entry, add two ground level apartments (increasing the total number of apartments from 45 to 47), reduce the amount of communal open space (COS) on the rooftop, and expand the COS at ground level, and clearly separate it from the child care facility. 3. The residential floor levels above ground have been replanned to improve the amenity performance of the development in terms of cross ventilation and solar access, in accordance with the Apartment Design Guide (ADG). 4. The amount of deep soil planting and landscaped area have been increased, and other changes made to the landscaping plan to include more planting. 1. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. 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. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in [14] to [23] below. 2. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) applies to the Site and, in particular, as it is situated within the Marsden Park Precinct, the provisions of "Appendix 12 Blacktown Growth Centres Precinct Plan" (The Precinct Plan) apply. I am satisfied that the development is for the purposes of a "centre-based child care facility" and "residential flat building", which are uses permissible with consent in the R3 Medium Density Residential zone (R3 zone) applying to the Site, and the development meets the objectives of the R3 Zone found at cl 2.3 of The Precinct Plan. 3. Clause 4.3 of The Precinct Plan and the associated Height of Buildings map provides, for this Site, a maximum building height of 21m. The development has a maximum building height of 21.8m. It breaches this development standard primarily to accommodate the lift overrun necessary for accessibility reasons to provides access to the rooftop communal open space. The Applicant has submitted a written request prepared by The Bathla Group, dated 10 July 2020, to vary this development standard, pursuant to cl 4.6 of The Precinct Plan (clause 4.6 variation request). I have considered the clause 4.6 variation request and I am satisfied, for the reasons set out in that document, that it has adequately demonstrated 1. that compliance with the height of building development standard in cl 4.3 of The Precinct Plan is unnecessary or unreasonable in the circumstances (cl 4.6(3)(a)), 2. that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6 (3)(b)) and 3. that the development is in the public interest as it is consistent with the objectives of the height standard and with the objectives of the R3 Zone in which the development is to be carried out (cl 4.6(4)(a)(ii)). 1. The parties advise that the Site is not subject to a floor space ratio control, and therefore is not inconsistent with cl 4.4 of The Precinct Plan; that removal of trees on the Site is approved under the consent granted to the DA creating Lot 26 and therefore cl 5.9 of The Precinct Plan does not apply; and that public utility infrastructure is available (cl. 6.1(1) of The Precinct Plan) as the Site is serviced by water and sewer and is proximate to electricity and telecom services in Richmond Road, and will be connected to those services in accordance with the requirements of the relevant authorities. 2. I also note that demolition of any buildings on the Site is approved under the consent to the DA that created Lot 26 (cl 2.7 of The Precinct Plan), and that the dwelling density on the Site exceeds the minimum applicable density of 35 dwellings per hectare, thereby satisfying cl 4.1B of The Precinct Plan. 3. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. A Contamination Site Investigation Report by Geotesta Pty Ltd dated 12 October 2018 (Contamination Report) has been submitted by the Applicant. It concludes that the Site is suitable for the proposed development, subject to the recommendations contained in the Contamination Report. Condition 3.6.1 of the agreed Conditions of Consent (Annexure A to the s34 agreement) require that the Contamination Report's recommendations be implemented, and Condition 3.6.2 requires the preparation of a validation report confirming completion of the remediation works. I am therefore satisfied that the relevant provisions of SEPP 55 have been met. 4. In relation to cll 101 and 104 of State Environmental Planning Policy (Infrastructure) 2007, I am satisfied: 1. that although the Site has a frontage to a classified road (Richmond Road) safe vehicular access will be provided by a road other than a classified road and the safety, efficiency and ongoing operation of the classified road will not be adversely affected (cl 101(2)); and 2. that, in accordance with cl 104(3), the DA was referred to Transport for NSW (TfNSW) for comment and on 24 October 2019 TfNSW advised that it had no objection to the development. 1. In relation to State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP), I am satisfied, based on the advice of the parties and the reasons contained in the amended Statement of Environmental Effects (September 2019) prepared by Universal Property Group Pty Ltd, that the DA as amended: 1. complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations, and 2. has considered the applicable matters of the Child Care Planning Guideline, as required under cl 23 of the Child Care SEPP. 1. In relation to State Environmental Planning Policy No 65—Design Quality of Residential Development (SEPP 65) and the associated ADG, I note an updated Design Verification Statement prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulation 2000 was filed with the Court on 3 March 2020, and Condition 11.23.1 of the consent requires the design quality to be verified before an Occupation Certificate is granted. I am therefore satisfied the development reasonably satisfies the aims and relevant provisions of SEPP 65 and the ADG. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) applies to the development. A revised BASIX Certificate number 990035M_03 dated 12 February 2020 has been submitted and Condition 5.4 of the consent requires that all commitments in the Certificate be complied with. 3. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)) (SREP 20) applies to the land. The DA has considered the relevant matters under cl 4 of SREP 20 and conditions of consent have been imposed in relation to stormwater quality and quantity. 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: 1. The Applicant is granted leave to amend its development application and to rely upon the following plans: Document or Drawing Title, Number and Issue Prepared By Dated Architectural plans Building Height Diagram - DA013, Rev E The Bathla Group 9 July 2020 Sections - DA014, Rev F The Bathla Group 9 July 2020 Ground Floor Plan – DA006, Rev G The Bathla Group 9 July 2020 Engineering Plans Cover Sheet – General Notes, Sheet Index and Legend – SY18199C200, Rev E Barker Ryan Stewart 9 July 2020 Stormwater Drainage and Grading –Site/Ground Floor Plan – SY18199C202, Rev E Details and Sections – SY18199C203, Rev E Music Catchment Plan – SY18199C204, Rev E Overall OSD Catchment Plan – SY18199C205, Rev E Supporting Documents Clause 4.6 Request to vary a Development Standard The Bathla Group 10 July 2020 Contamination Report Geotesta Pty Ltd 12 October 2018 Contamination Site Investigation Report, report no. NE388, 1. The Applicant's written clause 4.6 request dated 10 July 2020 to vary the height control under clause 4.3 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 is upheld. 2. The appeal is upheld. 3. Development Application No. DA 19-00819, for the construction of a multi storey mixed use development comprising a childcare centre on the ground floor for 80 children and 47 residential units above over 2 levels of basement car parking for 85 residential spaces and 26 childcare spaces, ancillary loading, plant and storage area, and associated landscaping and drainage works on proposed Lot 26 in approved subdivision (DA-19-00123) of Lot 62 in DP 1196729 and Lot 2 in DP 505790, being part of 226-228 Grange Avenue, Marsden Park, is approved subject to the conditions at Annexure A. ……………………………….. J Bindon Acting Commissioner of the Court Annexure A (424729, pdf) Plan (2451945, 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: 18 August 2020