Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1183 Hearing dates: Conciliation Conference on 22 March 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: See orders at [10] Catchwords: DEVELOPMENT APPEAL – residential flat building – apartment design guide – drainage – Blacktown Growth Centre Precinct – 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 (Sydney Regional Growth Centres) 2006 State Environmental Planning Policy No 55— Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Regional Environmental Plan No 20— Hawkesbury–Nepean River (No 1—1997) Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J Reid (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/376183 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application no DA-19-01486 for the construction of two six storey residential flat buildings (Block A and Block B) containing 144 units, basement car parking for 217 vehicles, stormwater drainage and landscaping (the Proposed Development) at proposed Lot 9 being created out of the proposed subdivision detailed below and otherwise known as 1032 Richmond Road and 1036 Richmond Road, Marsden Park (the Site). 2. The Proposed Development relates to proposed Lot 9 created out of the subdivision Lot 5 DP1245610, Lot 6 DP1245610, Lot 11 DP1245610, Lot 7 DP1245610, Lot 60 DP 1196729, Lot 8 DP 1245610, Lot 21 DP 1191512, Lot 20 DP 1191512, Lot 9 DP 1245610 and Lot 10 DP 1245610 at Richmond Road and Grange Ave, Marsden Park. Proposed Lot 9 relates to Lot 8 DP 1245610 and Part Lot 60 DP 1196729. Development consent DA-18-00159 for the subdivision of the Site was granted by the Court on 15 July 2020 in proceedings No 2019/46583. 3. This matter was listed for hearing on 22 and 23 March 2021 however after the parties had the benefit of the following two Joint Expert Reports, leave was sought by the Applicant on the first day of the hearing to rely on amended plans and the parties sought to have the matter listed for a conciliation conference: 1. Joint Expert Engineering Report filed 16 March 2021 prepared by Mark Santoro, Engineering Expert for the Applicant and Ashley Bond, Engineering Expert for Blacktown City Council; and 2. Joint Export Town Planning and Urban Design Report filed 19 March 2021 prepared by Ms Alison Davidson, Planning Expert for the Respondent, Mr Matthew Sales, Architect and Urban Design expert for Blacktown City Council and Mr Paul Grech, Planning Expert for the Applicant. 1. 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 22 March 2021. I have presided over the conciliation conference. 2. 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 conciliation conference was adjourned to 7 April 2021 to allow the parties to obtain and file an updated BASIX Certificate. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. 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. 4. 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 to be as set out in the following subparagraphs and I have included my reasons for satisfaction as follows: 1. The development of the Site is controlled by the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The Site is situated within the Marsden Park Precinct and the provisions of Appendix 12, Blacktown Growth Centres Precinct Plan of the Growth Centres SEPP applies (the Precinct Plan). Under the Precinct Plan, the majority of the Site is zoned R3 Medium Density Residential, and part of the Site is zoned SP2. 2. The Proposed Development is permissible with consent in the R3 Zone and the Proposed Development has the proposed residential flat building only within the R3 zone. 3. Clause 4.1B of the Precinct Plan deals with residential density requiring a minimum number of 35 dwellings per hectare and the Proposed Development meets this minimum requirement. 4. Clause 6.1 of the Precinct Plan provides that Development consent must not be granted for development on land to which this Precinct Plan applies unless the consent authority is satisfied that any public utility infrastructure that is essential for the Proposed Development is available or that adequate arrangements have been made to make that infrastructure available when it is required. I am satisfied that the Site is serviced by water and sewer, and that electricity and telecommunication services are available to the Site. 5. The provision of cl 7 of the State Environmental Planning Policy No 55 —Remediation of Land (SEPP 55) provides a jurisdictional prerequisite regarding contamination and residential development. I have considered the Environmental Site Validation Report for Proposed Residential Development report dated 1 November 2017 and the Detailed Contamination Site Investigation Report dated 27 January 2017 both prepared by Geotesta Pty Ltd on behalf of the Applicant which details the results of the investigation of the likelihood of the presence of contamination on the Site. I am satisfied that based on the assessment undertaken by Geotesta Pty Ltd, the Site was found to be suitable for the proposed land use for residential development and that no further contamination investigation is required and I form this state of satisfaction for the following reasons: 1. A contamination site validation report has been prepared in relation to the 1036 Richmond Road, which is now known as Lot 60 DP 1196729, and is behind Tab 17 of the Class 1 Appeal. This report confirms that the overall contaminates of the soils to be less than the threshold levels and the Site is considered suitable for the proposed land use for residential development. 2. A further contamination report was prepared in relation to 1032 Richmond Road, which is now known as Lot 8 DP 1245610, upon which the Applicant seeks leave to rely upon for these proceedings. This report also concludes confirms that the overall contaminates of the soils to be less than the threshold levels and the Site is considered suitable for the proposed land use for residential development. 3. Conditions of consent are proposed to be imposed in respect of contamination. 1. The Applicant has provided an updated BASIX Certificate to accompany the plans upon which consent is sought as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 2. I am satisfied that the matters under cll 5 and 6 of the Sydney Regional Environmental Plan No 20—Hawkesbury–Nepean River (No 1–1997) have been considered and that the conditions of consent have been agreed in accordance with the Joint Expert Engineering Report. 3. Clause 30(2)(a) of the State Environmental Planning Policy No 65— Design Quality of Residential Apartment Development (SEPP 65) requires that development consent must not be granted if the Proposed Development does not demonstrate that adequate regard has been given to the design quality principles and I am satisfied that the amended Proposed Development has been redesigned and now satisfies the design quality principles provided at Schedule 1 of SEPP 65 and the Apartment Design Guide. I have also considered the Design Verification Statement prepared by Universal Property Group trading as Bathla Group dated 3 March 2021 and the content of the recommendations contained in the Joint Export Town Planning and Urban Design Report which have been incorporated and adopted by the Applicant in the amended plans and in the conditions of consent. 4. Pursuant to s 7.23 of the EPA Act, proposed condition of consent 11.24 requires the payment of Special Infrastructure Contribution. 5. Finally, in relation to notification of Proposed Development and public interest considerations I note that the Amended Statement of Facts and Contentions filed 15 March 2021 sets out the steps taken by the Respondent to notify the Proposed Development. The parties further explained as follows: 1. The original DA was placed on notification between 11 December 2019 and 20 January 2020. The Respondent did not receive any submissions in response to the notification; 2. The DA as amended with leave of the Court on 5 March 2021 has not been renotified as the amendments result in a reduced environmental impact and resolve Council's renaming merit concerns; 3. On 6 December 2019, the Respondent referred the original development application to NSW Police. On 10 January 2020, NSW Police responded to the Respondent raising no objections to the DA and advised that the consent would be subject to the standard conditions; and 4. On 6 December 2019, the Respondent referred the original development application to Transport for NSW. On 17 February 2020, Transport responded to the Respondent advising that it did not object to the proposed dwelling density and road layout is consistent with the Marsden Park Precinct. 1. The parties gave the above explanations as to how the jurisdictional prerequisites have been satisfied and I have set out my reasons above as to my state of satisfaction. 2. 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. 3. The Court orders that: 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 F Cover Sheet The Bathla Group 17 March 2021 DA 002 Issue F Compliance Table 17 March 2021 DA 003 Issue B Location Plan 17 July 2020 DA 004 Issue C Site Analysis 7 August 2020 DA 005 Issue E Site Survey Plan 2 March 2021 DA 006 Issue C Site Plan 7 June 2020 DA 007 Issue F Basement 2 Plan 17 March 2021 DA 008 Issue F Basement 1 Plan 17 March 2021 DA 009 Issue F Ground Floor 17 March 2021 DA 010 Issue F Level 1 17 March 2021 DA 010A Issue F Level 2 17 March 2021 DA 010B Issue F Typical Level 3,4 & 5 17 March 2021 DA 011 Issue F Roof Plan 17 March 2021 DA 012 Issue F Elevation 1 17 March 2021 DA 013 Issue C Elevation 2 7 June 2020 DA 014 Issue C Section 1 7 June 2020 DA 015 Issue F Section 2 17 March 2021 DA 016 Issue F Material and Finishes 17 March 2021 DA 017 Issue B Shadow Diagram 7 July 2020 DA 018 Issue F Solar Access 17 March 2021 DA 019 Issue F Cross Ventilation 17 March 2021 DA 020 Issue F Area Calc. - GFA 17 March 2021 DA 021 Issue F Area-Landscape, COS & Deep S. & Site Cov 17 March 2021 DA 022 Issue B Building Height Compliance 7 July 2020 DA 023 Issue E Adaptable & Livable Units 2 March 2021 DA 023A Issue F Block A_Apartment Size and Layout 17 March 2021 DA 023B Issue F Block B_Apartment Size and Layout 17 March 2021 DA 023C Issue F Enhanced Amenity 17 March 2021 DA 024 Issue C Perspective View 7 August 2020 DA 025 Issue F Ramp Section 17 March 2021 DA 025A Issue F Storage Schedule 17 March 2021 DA 027 Issue E Acoustic Fence and Fencing Detail 2 March 2021 1. The Applicant is granted leave to amend its development application to rely upon the following documents: Letter from Varga Traffic Planning Pty Ltd Prepared by Robert Varga 9 March 2021 Environmental Site Validation Report for Proposed Residential Development 1032 Richmond Road, Marsden Park Geotesta 1 November 2017 1. The Applicant is to pay the Respondent's costs as agreed or as assessed under s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. That Development Application No. DA-19-01486, for the construction of a residential flat building (containing 144 units) and associated works including access driveways to basement car parking, storm water drainage and landscaping on proposed Lot 9 in proposed subdivision DA 18-00159 on Lot 8 DP 1245610 and Part Lot 60 DP 1196729 known as 1032 and 1036 Richmond Road, Marsden Park, is approved subject to the conditions at Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (375300, pdf) Architectural Plans (18269624, 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 April 2021