Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1017 Hearing dates: Conciliation Conference on 10 December 2020 Date of orders: 15 January 2021 Decision date: 15 January 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [28] Catchwords: DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders Legislation Cited: Architects Act 2003 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 (Infrastructure) 2007 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 Appendix 12, Blacktown Growth Centres Precinct Plan Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Reid (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/46599 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Blacktown City Council (the Respondent) of Development Application DA-18-02226 seeking consent for the construction of a six-storey residential flat building containing 96 apartments and associated works including basement car parking, access driveways to the basement car park, stormwater drainage and landscaping on Lot 7 in the approved subdivision of Lot 10 and 11 in DP 1245610 known as No 234 Grange Avenue, Marsden Park (the site). 2. I rely upon the background facts and contentions of the matter as set out by the Respondent in the Statement of Facts and Contentions, filed with the Court on 4 April 2019. 3. I also note that prior to the hearing, the Applicant was granted leave on 2 November 2020 to amend the application and rely upon amended plans and other documents, which the parties agree substantially resolves the matters in contention. 4. At the commencement of the hearing, the parties advised me that as the experts had agreed all matters in contention, the dispute had been narrowed to the proposed conditions of consent that had been provided by the Applicant to the Respondent immediately prior to the commencement of the hearing. 5. The Respondent sought, and was granted, an adjournment in order to settle the draft proposed conditions. In granting the adjournment, the Court identified a number of apparent errors and omissions on the architectural drawings and directed that relevant experts confer in order to address the same prior to the resumption of the hearing. 6. At the resumption of the hearing, the parties advised that the parties had addressed the matters identified in the architectural drawings and had now reached in-principle agreement, and sought the matter be listed for conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). 7. The matter was reallocated to me under s 34(1) of the LEC Act for a conciliation conference between the parties, which was held on 10 December 2020 using Microsoft Teams, in accordance with directions of the Court and with consent of the parties. I presided over the conciliation conference. 8. 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 of consent pursuant to s 4.16(1) of the EPA Act. 9. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 14 December 2020. 10. The parties ask me to approve their decision as set out in the s34 agreement before the Court. 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. 11. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [28]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. Jurisdiction 1. The site is located within the R3 Medium Density Residential zone as identified by the Blacktown Growth Centres Precinct Plan 2013 (Precinct Plan) which is found at Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). 2. Residential flat buildings are permitted in the R3 zone with consent, and where the development is consistent with the objectives of the R3 zone which are in the following terms: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment. 1. The Residential Density Map at clause 4.1B of the Precinct Plan requires a minimum of 35 dwellings per hectare, with which the proposed development complies. 2. The proposed development complies with the height of buildings standard of 21m, at clause 4.3 of the Precinct Plan. 3. As the site is serviced by water and sewer, and services such as telecommunications and electricity are available to the site, the provisions of clause 6.1 of the Precinct Plan are satisfied. 4. In respect of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), the Applicant relies upon a Preliminary Site Investigation report prepared by Martens consulting engineers dated December 2015, and a Detailed Site Investigation Report prepared by Geotesta dated 31 December 2016 and filed with the Class 1 Application which concludes that the site is suitable for the proposed land use for residential development. 5. As the proposed development is for residential apartment development, the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies, and relevantly provides: 1. A consent authority, or the Court on appeal, is to take into consideration, among other things; * the design quality of the development when evaluated in accordance with the design quality principles (at subcl 28(2)(b)), and * the Apartment Design Guide (ADG) (at subl 28(2)(c)). 1. At subcl 30(2), consent must not be granted unless the consent authority, or the Court on appeal, is of the opinion that the proposed development demonstrates adequate regard has been given to the design quality principles at Schedule 1 of the SEPP 65, and to the objectives specified in the ADG. 1. Relatedly, for development applications referrable to SEPP 65, s 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) requires that a qualified designer, being defined at s 3 of the EPA Regulations as a person registered under the Architects Act 2003, must provide the consent authority, or the Court on appeal, with an attestation that they designed, or directed the design of the development. 2. Furthermore, the attestation must address the design quality principles in Schedule 1 of SEPP 65, and demonstrate, in terms of the ADG, how the objectives in Parts 3 and 4 of that guide have been achieved. 3. I note that the design statement prepared by Mr Chee Kean Lim (Architects Registration No. 5895) is in a complying form, and is to the satisfaction of the Respondent in respect of the matters at subcll 28 and 30 of SEPP 65. 4. As the site is located more than 90m from Richmond Road, being a classified road, for which the Respondent has control pursuant to s 145 of the Roads Act 1993, the application is not subject to cl 104 of the State Environmental Planning Policy (Infrastructure) 2007. 5. The application is accompanied by a BASIX Certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulations (Certificate No. 1154664M dated 20 November 2020). 6. The Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20) sets out, at cl 4, general planning matters to be considered and, at cl 6, specific planning policies to be considered by operation of cl 4 of the SREP 20. I note that conditions of consent are proposed, in particular, in respect of water quality and quantity, being matters set out in cl 6 of the SREP 20. 7. Provision is made in the conditions of consent for a special infrastructure contribution to be paid by the Applicant in accordance with s 7.23 of the EPA Act. 8. 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. 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. 9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment whatsoever of the issues that were originally in dispute between the parties. 10. 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 its development application to rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural plans DA 001 Issue H Cover Sheet The Bathla Group 8 December 2020 DA 002 Issue E Compliance Table 16 November 2020 DA 003 Issue D Location Plan 21 November 2019 DA 004 Issue D Site Analysis 21 November 2019 DA 005 Issue E Site Survey Plan 8 December 2020 DA 006 Issue G Site Plan 8 December 2020 DA 007 Issue F Basement 2 Plan 8 December 2020 DA 008 Issue G Basement 1 Plan 8 December 2020 DA 009 Issue H Ground Floor Plan 8 December 2020 DA 010 Issue G Level 1 & 2 8 December 2020 DA 011 Issue G Level 3 & 4 8 December 2020 DA 012 Issue G Level 5 & Roof Plan 8 December 2020 DA 013 Issue F Elevations 26 October 2020 DA 014 Issue H Sections 8 December 2020 DA 015 Issue F Material and Finishes 8 December 2020 DA 016 Issue E Shadow Diagram 26 October 2020 DA 017 Issue E Solar Access 26 October 2020 DA 018 Issue E Cross Ventilation 26 October 2020 DA 019 Issue E Area Calc-GFA 26 October 2020 DA 020 Issue E Area Calc – Site Coverage 26 October 2020 DA 021 Issue F Area Calc- Landscape-COS-Deep Soil 16 November 2020 DA 022 Issue E Building Height Compliance 12 March 2020 DA 023 Issue D Typical, Adaptable & Livable Unit 21 November 2019 DA 024 Issue D Apartment Size and Layout 21 November 2019 DA 025 Issue E Perspective Views 26 October 2020 DA 026 Issue D Notification Plan 21 November 2019 DA 027 Issue D Enhanced Amenity 21 November 2019 DA 028 Issue E 4.5M clearance Garbage Truck 16 November 2020 DA 029 Issue D Storage Schedule & P.O.S Area 21 November 2019 WM 001 Issue E Bin Transfer Path 12 March 2020 Landscape Plans LPS34 21 – 121 Rev B Page 1 Hardscape Plan Conzept Landscape Architects 17 November 2020 LPS34 21 – 121 Rev B Page 2 Deep Soil Plan 17 November 2020 LPS34 21 – 121 Rev B Page 3 Landscape Master Plan 17 November 2020 LPS34 21 – 121 Rev B Page 4 Landscape Plan 01 17 November 2020 LPS34 21 – 121 Rev B Page 5 Landscape Plan 02 17 November 2020 LPS34 21 – 121 Rev B Page 6 Landscape Plan 03 17 November 2020 LPS34 21 – 121 Rev B Page 7 Sections 17 November 2020 LPS34 21 – 121 Rev B Page 8 Details & Specifications 17 November 2020 LPS34 21 – 121 Rev B Page 9 Details 17 November 2020 LPS34 21 – 121 Rev B Page 10 Details 17 November 2020 1. The Applicant is granted leave to amend its development application to rely upon the follow documents: Title Prepared by Date Waste Management Plan Rev E Universal Property Group Pty Limited 27 November 2020 Basix Certificate Number 1154664M NatHERS Certificate No: 0005410640 and Stamped Plans ESD Synergy Pty Ltd 20 November 2020 Basix Assessment Report ESD Synergy 20 November 2020 Design Verification Statement Universal Property Group Pty Limited November 2020 1. The appeal is upheld. 2. Development Application No. DA-18-02226, for the construction of a residential flat building containing 96 units with basement carparking, access driveways, stormwater drainage and landscaping on proposed Lot 7 as approved in DA-18-00159 relating to Lot 5 in DP 1245610, Lot 6 in DP 1245610, Lot 11 in DP 1245610, Lot 7 in DP 1245610, Lot 60 in DP 1196729, Lot 8 in DP 1245610, Lot 21 in DP 1191512, Lot 20 in DP 1191512, Lot 9 in DP 1245610 and Lot 10 in DP 1245610, is approved subject to the conditions at Annexure A. …………………… T Horton Commissioner of the Court Annexure A - Lot 7 (374482, pdf) Architectural Plans - Lot 7 (11144471, 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: 15 January 2021