Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1331

Land and Environment Court New South Wales

Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2021] NSWLEC 1331 Hearing dates: Conciliation conference on 31 May 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [20] Catchwords: DEVELOPMENT APPLICATION – residential flat building – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, 8.7 Land and Environment Court Act 1979 ss 30, 34 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, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J McKelvey (Applicant) J Fan (Solicitor) (Respondent)

Solicitors: Swaab (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/376161 Publication restriction: Nil

Judgment 1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal of development application DA -19-01485 (DA) for the construction of a six-storey residential flat building containing 71 units and associated drainage and landscaping works on proposed Lot 10 as approved in the development consent to development application DA 18-00159 on Lots 8 and 9 in Deposited Plan 1245610 and part Lot 60 in Deposited Plan 1196729 known as 1032 and 1036 Richmond Road, Marsden Park (site). 2. The parties undertook conciliation pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act) in August and September 2020 but the matter was not resolved, and the conciliation was terminated on 8 September 2020. 3. On 3 February 2021 the Assistant Registrar fixed the matter for hearing on 31 May and 1 June 2021. The Chief Judge delegated the hearing to me pursuant to s 30 of the Court Act. 4. On 28 April 2021, the Court granted leave to the Applicant to amend its development application and to rely on amended plans and other supporting documents. The Respondent filed its Amended Statement of Facts and Contentions on 26 May 2021 in response to the amended development application. The Respondent did not contend that development consent should not be granted but identified clarification of finished levels relating to drainage and some minor amendments to some units which could be achieved by the imposition of conditions. 5. In the circumstances, I arranged for the matter to be listed before me for case management on 27 May 2021. The parties informed me at that conference that the matter had been resolved in principle and that they would seek an order from the Court that the matter be subject to further conciliation pursuant to s 34 of the Court Act. I ordered that the hearing not commence until noon on 31 May 2021 to allow the conciliation to proceed prior thereto if the Court so ordered. 6. The Registrar on 28 May 2021 ordered that there be further conciliation and the Chief Judge delegated that power to me. Accordingly, on 31 May 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Court Act. At the conciliation conference, the parties confirmed that they had reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. An agreement pursuant to s 34 of the Court Act was filed on 31 May 2021. 7. The proposed decision was to grant leave to amend the development application and to grant development consent subject to conditions. 8. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 9. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. In order to exercise that function, I must be satisfied that any preconditions to the exercise of that power have been met. Accordingly, I note the following. 10. The site is situated within the Marsden Park Precinct and the provisions of Appendix 12, Blacktown Growth Centres Precinct Plan (Precinct Plan) of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) applies. 11. The site is zoned R3 Medium Density Residential, part zoned SP2 Local Drainage and part RE1 Public Recreation under the Precinct Plan. The proposed residential flat building is proposed to be constructed on the R3 portion of the site and permissible with consent in the R3 zone. 12. There is no floor space ratio development standard prescribed for the site under the Precinct Plan. 13. Pursuant to cl 4.3 of Appendix 12 of the Growth Centres SEPP and the relevant Building Height Map, the maximum building height for any building on the part of the site mapped Area R is 21m. No part of the proposed building exceeds that height. 14. Pursuant to cl 6.1 of Appendix 12, 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. 15. State Environmental Planning Policy No 55—Remediation of Land applies to the land. A contamination site validation report has been prepared by Geotesta Pty Ltd dated 17 January 2017. That report confirms that the overall contaminants of the soils to be less than the threshold levels and the site is considered suitable for the proposed land use for residential development. I am satisfied that no further contamination investigation is required and that the conditions of consent which are proposed to be imposed in respect of contamination ensure that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, the residential use. 16. Clause 30(2)(a) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development requires that development consent must not be granted if in the opinion of the consent authority the development does not demonstrate that adequate regard has been given to the design quality principles. Having regard to the amendments made on 27 April 2021 and that the DA is accompanied by a SEPP 65 Design Verification Statement, I am so satisfied. 17. An updated BASIX Certificate number 1041156M_02 has been provided as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 18. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 19. Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders. 20. The Court orders that: 1. The Applicant is granted leave to amend its development application and to rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural Plans Drawing No. DA000 Revision F Cover Page The Bathla Group 14 May 2021 Drawing No DA006 Revision E Site Plan 14 May 2021 Drawing No DA007 Revision F Basement 2 14 May 2021 Drawing No DA008 Revision F Basement 1 14 May 2021 Drawing No DA009 Revision F Ground Floor 14 May 2021 Drawing No DA012 Revision C Roof 14 August 2020 Drawing No DA016 Revision D Area CAL-C.O.S, Landscape, Deep Soil 14 May 2021 Drawing No DA018 Revision E 4.5m Clearance for Garbage Truck 14 May 2021 Landscape Plans LPS34 21-20 Rev C Hardscape Plan Conzept Landscape Architects 18 May 2021 Page 1 LPS34 21-20 Rev C Deep Soil Plan 18 May 2021 Page 2 LPS34 21-20 Rev C Landscape Master Plan 18 May 2021 Page 3 LPS34 21-20 Rev C Landscape Plan 01 18 May 2021 Page 4 LPS34 21-20 Rev C Landscape Plan 02 18 May 2021 Page 5 LPS34 21-20 Rev C Landscape Plan 03 18 May 2021 Page 6 LPS34 21-20 Rev C Sections 18 May 2021 Page 7 LPS34 21-20 Rev C Details + Specifications 18 May 2021 Page 8 LPS34 21-20 Rev C Details 18 May 2021 Page 9 Acoustic Report prepared by Acoustic Logic for Lots 8, 10 and 11 - 230 232 Grange Avenue and 1032 – 1036 Richmond Road, Marsden Park, dated 4 May 2021