Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1546 Hearing dates: Conciliation conference on 19 October, final agreement filed 20 October 2020 Date of orders: 10 November 2020 Decision date: 10 November 2020 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) The Applicant's written clause 4.6 request dated 7 September 2020 made under Appendix 5 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking a variation to the development standard for height under clause 4.3, is well founded and upheld. (2) The appeal is upheld. (3) Development Application No. SPP – 17-00022, for the construction of a five-storey residential flat building containing 66 apartments over 2 levels of basement car parking, lot consolidation, landscaping and associated drainage works on proposed Lots 3 and 4 approved in Development Application No. DA-16-04983 on Lot 30 Deposited Plan 1246320 known as 305 South Street, Marsden Park, is approved subject to the conditions of consent set out 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 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Texts Cited: Apartment Design Guide Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Smith (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Swaab Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/397936 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application SPP-17-00022 (DA). The DA sought consent for the construction of 4 x five-storey residential flat buildings containing 149 units over 2 levels of basement car parking (the proposal) at 305 South Street Marsden Park (the site) by Blacktown City Council (the Council). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 October 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. The amended proposal is for the construction of a five-storey residential flat building containing 66 units over 2 levels of basement car parking, lot consolidation, associated landscaping, palisade fencing and stormwater drainage works. The amendments resolve the contentions raised by the Respondent. 6. 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. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, the Parties agree, and I am satisfied, State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth Centres) is the relevant environmental planning instrument. Under the provisions of Appendix 5 of the SEPP Growth Centres, the site is zoned R3 medium density residential, and the amended proposal is permissible with consent. 9. The amended proposal is consistent with all relevant development standards contained within Appendix 5 of the SEPP Growth Centres, except for a non-compliance with the height of building set out in cl 4.3 of Appendix 5 of the SEPP Growth Centres. The amended proposed has a maximum height of building of 16.45 metres and represents a variation of approximately 2.8% to the numerical development standard of 16 metres. 10. Clause 4.6(3) of Appendix 5 of the SEPP Growth Centres requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 11. Clause 4.6(4) of Appendix 5 of the SEPP Growth Centres requires the consent authority to be satisfied the applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 12. Additionally, cl 4.6(4)(b) of Appendix 5 of the SEPP Growth Centres requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 13. The applicant has provided a clause 4.6 written request, prepared by The Bathla Group and dated 7 September 2020, seeking to justify non-compliance with the height of building development standard, and demonstrate the objectives set out in cl 4.3 of Appendix 5 of the SEPP Growth Centres have been met. 14. The amended proposal has been designed to be sited generally within a building envelope determined by the building setback controls and development standards applicable to the site. The extent of building height non-compliance is limited to a single lift overrun, which is located within the proposed development in such a manner that its visibility or overshadowing will be negligible or is eliminated entirely. As such, I am satisfied the objectives of the height of building development standard are achieved notwithstanding non-compliance with the standard. Accepting the amended proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest. 15. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the height of building development standard. 16. Further, I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been considered. A site contamination investigation report has been prepared. Conditions of consent have been imposed to ensure the recommendations of the report are implemented. 17. I am satisfied an updated BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 18. I am satisfied the requirements of State Environmental Planning Policy No 65— Design Quality of Residential Apartment Development (SEPP 65) have been met and the amended proposal responds to the design quality principles at Schedule 1 of SEPP 65 and to the Apartment Design Guide generally. 19. I am satisfied the requirements set out at cl 4 of Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) have been met by the amended proposal and appropriate conditions of consent have been imposed in relation to water quality and quantity. 20. Section 4.15 of the EPA Act identifies submissions as a relevant consideration in the development assessment process. The parties agree, and I am satisfied, that submissions of objectors have been taken into account as part of the assessment of the amended proposal. 21. Additionally, I am satisfied the amended proposal, after external referral to Transport for New South Wales, appropriately addresses issues previously raised by that agency. 22. Pursuant to s 7.23 of the EPA Act, a condition of consent has been imposed requiring the payment of Special Infrastructure Contribution. 23. Pursuant to Schedule 4A of the EPA Act, which was in force at the time the DA was lodged on 24 July 2017, The Central Sydney City Planning Panel (the Panel) exercises the consent authority function of the Council. On 15 October 2020 the Panel provided instructions to the Respondent to sign the s34 agreement. 24. Having considered each of the preceding jurisdictional requirements and forming the necessary view required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The Court orders that: 1. The Applicant's written clause 4.6 request dated 7 September 2020 made under Appendix 5 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 seeking a variation to the development standard for height under clause 4.3, is well founded and upheld. 2. The appeal is upheld. 3. Development Application No. SPP – 17-00022, for the construction of a five-storey residential flat building containing 66 apartments over 2 levels of basement car parking, lot consolidation, landscaping and associated drainage works on proposed Lots 3 and 4 approved in Development Application No. DA-16-04983 on Lot 30 Deposited Plan 1246320 known as 305 South Street, Marsden Park, is approved subject to the conditions of consent set out in Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (504292, 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: 10 November 2020