Land and Environment Court New South Wales Medium Neutral Citation: C & S Partners Mortgage and Insurance Pty Ltd v Blacktown City Council [2021] NSWLEC 1700 Hearing dates: Conciliation Conference 2 and 3 November 2021 Date of orders: 18 November 2021 Decision date: 18 November 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: See orders at [33] Catchwords: DEVELOPMENT APPEAL – conciliation conference – staged development – cl 4.6 written request to justify contravention of maximum building height development standard – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007, cll 87, 101 and 102 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Sydney Region Growth Centres) 2006, Appendix 12 Category: Principal judgment Parties: C & S Partners Mortgage and Insurance Pty Ltd ABN 50617463886 (Applicant) Blacktown City Council (Respondent) Representation: Counsel: N Eastman (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Bartier Perry Pty Limited (Respondent) File Number(s): 2021/55619 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 refusal of a development application SPP-20-00002 seeking development consent for staged development including demolition of existing structures, tree removal, civil and drainage works and dam dewatering (the Proposed Development) at 971 Richmond Road, Marden Park NSW 2046 legally described as Lot 13 in DP 1190560 (the Site). 2. The proceedings were listed for hearing on 2 November 2021 and relevantly, the Applicant had filed a Notice of Motion on 26 October 2021, also listed before me on 2 November 2021. The Applicant sought to amend the Proposed Development and rely on a Further Amended Development Application which addresses the matters discussed between the experts during the joint conference pertaining to matters concerning planning, traffic and waste management, civil and drainage works. 3. The parties agreed that the amended documentation attached to the joint expert reports filed with the Court and included in the Further Amended Development Application has resolved the remaining substantive issues. 4. The Proposed Development now seeks consent for development in two stages: 1. Stage 1: Subdivision of 1 lot to create: 1. Proposed Lot 1 zoned B4 for mixed use development with an area of 9698.9m2; 2. Proposed Lot 2 being a R3 zoned residue lot with an area of 3553.3m2; 3. 1 lot for public roads (New Road 1, New Road 2, New Road 3, New Road 4); 4. Proposed Lot 3 is a residue lot zoned B4 and R3 and is 8106.1m2 in size within the southern portion of the size and has a transport corridor investigation area affectation under cl 6.10 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), to be future SP2 zoned land for the future Sydney Metro rail corridor. 1. Stage 2 comprising the following: 1. Construction of a large mixed-use development within Proposed Lot 1 comprising a series of 6 x 8 storey buildings proposed to contain: 1. Total Retail floor space with area of 2641m2 for 14 commercial tenancies, a child care facility for 100 children with GFA of 582.7m2 and outdoor play area of 700 m2, and a gymnasium with GFA of 404 m2 on the ground floor. 2. 236 residential units over 6 buildings (Blocks A – F) in the 7 storeys above the ground level retail and mixed-use development with the following breakdown: 1. 43 x 1 bedroom units (18.2%); 2. 145 x 2 bedroom units (61.4%); 3. 38 x 3 bedroom units (16.1%); 4. 10 x 4 bedroom units (4.2%); 5. Included within the 236 units are 25 Adaptable units and 31 Silver Level units. 1. 512 car parking spaces across Basements 1 – 3. 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 has been held on 2 and 3 November 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. 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 the terms of cl 4.6 of the Growth Centres SEPP to vary a building height development standard and other relevant provisions of State Environmental Planning Policies detailed below. 5. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed written document. I summarise and include the parties' explanation below. 6. The Site is situated in the Marsden Park Precinct within the North West Growth Centre and the Site fall within the provisions of Appendix 12 of the Growth Centres SEPP. Accordingly, the Blacktown Local Environmental Plan 2015 does not apply to the Site and the Proposed Development. Jurisdictional matters 1. Owner's consent has been given to the Applicant for lodgement of the Development Application, see the DA form filed with the Class 1 Application. Owner's consent has also been provided by the adjoining site at 999 Richmond Road for the construction of a road connection to Grange Avenue from the site (see Tab 13 to Exhibit CM-1). This road was previously approved by Development Consent DA-15-02765 in relation to 999 Richmond Road. 2. On 29 October 2021, the Development Application (as amended) was sent to the NSW Department of Natural Resources Access Regulation (NRAR) and a response was received confirming that there are no mapped watercourses on the site. Therefore, NRAR considers that, for the purposes of the Water Management Act 2000, a controlled activity approval is not required and no further assessment by NRAR is necessary. 3. Under the Sydney Region Growth Centres SEPP: 1. The Site is zoned B4 Mixed Use and R3 Medium Density Residential, with the southern strip of the Site being identified as a future transport corridor for the future extension of the Sydney Metro Northwest that will connect Tallawong Station and the proposed Marsden Park Station per cl 6.10, Appendix 12 of the Growth Centres SEPP; 2. The location of the substantive portion of the development is proposed within the B4 zone, which are uses that are permissible with consent, being shop top housing. Works proposed within the R3 zone are civil works, with future redevelopment of the R3 land to be the subject of a separate DA. No works are proposed within the land identified as a future transport corridor; 3. The Applicant has agreed to accept conditions requiring the approval of the proposed gymnasium and child care facility located at ground floor to each be the subject of separate DAs (see conditions 1.3 and 1.4); 4. The Site is not identified as a heritage item nor is it located within a heritage conservation area; 5. The Site is not located on a flood control map, nor on bushfire prone land; 6. The Proposed Development is compliant with the minimum lot size development control for Torrens title subdivision required by cl 4.1AA. 1. In satisfaction of cl 7 of the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) the following documents have been submitted as part of the Development Application: 1. Preliminary and Detailed Site Investigation Report prepared by Geotest Services dated 2 December 2019; and 2. Preliminary Salinity Assessment Report prepared by Geotest Services dated 9 December 2019. 1. Provision of this information has satisfied the Respondent that it has adequately considered the contamination status of the site and method of remediation in accordance with cl 7 of SEPP 55. Conditions have been imposed and accepted by the Applicant in relation to the method of remediation. 2. The Proposed Development satisfies various provision of the State Environmental Planning Policy (Infrastructure) 2007. The Proposed Development involves work adjacent to a future rail corridor and excavation below 2m within 25m of that land. Transport for NSW (TfNSW) issued their concurrence in relation to the development on 5 October 2021. 3. In satisfaction of cll 87, 101 and 102 and in response to TfNSW's latest correspondence, an Amended Traffic Impact Assessment prepared by EB Traffic Solutions dated 16 October 2021 was prepared and considered by the parties' experts in the Joint Traffic Report. 4. Further, an Amended Acoustic Assessment prepared by Acouras Consultancy dated October 2021 was filed with the Court as part of the Further Amended Application, reference to which is included in the s34 agreement. 5. The Acoustic Assessment considered the impact of road noise on the residential units and notes that provided the recommendations in Tables 9 and 10 of the report are achieved, that the units will achieve the required noise criteria. Compliance with these recommendations has been required, and accepted by the Applicant, in the conditions of consent. 6. The Development Application was referred to TfNSW on 2 October 2020 in accordance with cl 6.10 of Appendix 12 of the Growth Centres SEPP on the basis that it is the rail authority for the Transport Corridor marked "I" on the Land Zoning Map for the purpose of the Growth Centres SEPP. 7. On 11 November 2020, TfNSW provided its concurrence to the Development Application, subject to the consent authority imposing conditions of consent. The conditions provided by TfNSW have been included into the conditions of consent (see condition 3.19). 8. An Amended BASIX Certificate has been provided to reflect the Amended Architectural Plans in satisfaction of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Justification of the contravention of the Building height development standard 1. I will now deal with the jurisdictional prerequisite of the cl 4.6 written request to justify the contravention of the building height development standard. Under the Growth Centres SEPP, cl 4.3 stipulates that there is a maximum building height of 28m to the B4 zone. The Proposed Development is predominantly compliant with the height control, with the exception of one of the proposed 6 buildings, 'Block D', being above the height by a maximum of 2.345m exceeded by the roofed portion of the communal open space, plus lift overrun and fire stair. The proposed exceedance is shown in the Height Plane Diagram included in the Amended Architectural plans dated 5 October 2021 filed with the Court as part of the Further Amended Application at Tab 2 of Exhibit CM-2. 2. The Applicant relies on a cl 4.6 written request prepared by Think Planners dated 7 October 2021 and which is included in the Further Amended Application at Tab 5 of Exhibit CM-2 filed 26 October 2021, to justify the building height development standard in cl 4.3 of the Growth Centres SEPP. 3. The written request is founded on the reasons set out on pages 6 – 13, namely that: 1. The variation is a function of achieving the rooftop communal area for the development, which provides a planning benefit in an elevated communal open space with high quality space and solar access, whilst providing for suitable shading to the rooftop area; 2. The lift access provides accessibility to the communal area by all persons within the development; 3. The extent of the non-compliance will be largely imperceptible when viewed from the public domain or surrounding properties, noting the recessed nature of the curved roof form and lift over run elements incorporated into the design; 4. Compliance with the height control would necessitate removal of the lift access plus shade elements for the space, which the parties' experts have agreed, would result in a poorer outcome; 5. The proposed development, despite the variation, is consistent with the intent of the maximum height control and will present as a series of buildings that appropriately addresses the surrounding public roads and space, without creating any adverse overshadowing impacts on neighbouring development; 6. The parties agree, and I am satisfied that: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the cl 4.3 building height development standard are satisfied as detailed in the cl 4.6 written request at pages 10 and 11; 2. there are sufficient planning grounds to justify contravening the development standard for the reasons set out in the cl 4.6 written request on page 12, namely that the exceedance is minor and enables a better design outcome in accordance with one of the objects of the EPA Act to promote good design and amenity of the built environment; and 3. the development is in the public interest and is consistent with the B4 zone objectives as set out at page 13 of the cl 4.6 written request. 1. I have also noted that at 1.6 of the Joint Planning and Urban Design Expert Report filed 19 October 2021 the experts agree that the rooftop elements of Block D are a positive design feature and support for the height departure enables a better design outcome in relation to the rooftop facility and amenity of the space through provision of suitable access, facilities, and shade elements to the rooftop communal open space. Notification 1. The Development Application was advertised, exhibited and notified from 24 June 2020 to 8 July 2020. At the completion of the notification period, 1 submission was received. The Amended Development Application was notified from 1 September 2021 to 1 October 2021. One submission was received. A copy of the submissions from resident objectors is included in the Respondent's Bundle of Documents filed 29 October 2021. 2. The Further Amended Development Application was not renotified as the amendments resulted in an improved community outcome which did not require renotification. 3. I am satisfied that the concerns raised by the objectors have been addressed through the Amended Development Application and Further Amended Development Application and by way of conditions of consent. Findings and conclusion 1. 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 for the reasons above and where appropriate I adopt the reasons given by the parties. 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 notes that: 1. The Court notes that Blacktown City Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application SPP-20-00002 per the documentation below. Plan Name Drawing number Revision Date Prepared by Amended Architectural Plans Cover Sheet 00 F 5 October 2021 Architex Unit Breakdown + Solar + Cross Ventilation Calculations 00a F 5 October 2021 Architex Site Analysis 00c A 6 April 2020 Architex Subdivision Plan 01 I 15 July 2021 Architex Future Roads + Site Plan 01a F 15 July 2021 Architex Lot 1 + Staging Plan 01b C 15 July 2021 Architex Overall Site Plan 02 H 5 October 2021 Architex Basement Level 3 03 F 5 October 2021 Architex Basement Level 2 04 F 5 October 2021 Architex Basement Level 1 05 G 5 October 2021 Architex Level 1 / Ground Floor 06 H 5 October 2021 Architex Level 2 07 H 5 October 2021 Architex Level 3 08 G 15 July 2021 Architex Level 4 09 G 15 July 2021 Architex Level 5 10 H 5 October 2021 Architex Level 6 11 H 5 October 2021 Architex Level 7 12 H 5 October 2021 Architex Level 8 13 H 5 October 2021 Architex Roof Plan 14 H 5 October 2021 Architex Level 02 – Block A 15 C 15 July 2021 Architex Level 03-04 Block A 16 C 15 July 2021 Architex Level 05 - Block A 17 C 15 July 2021 Architex Level 06-08 – Block A 18 C 15 July 2021 Architex Roof Level – Block A 19 C 15 July 2021 Architex Level 02 &03-04 Block B 20 C 15 July 2021 Architex Level 05-07 & Roof Level – Block B 21 C 15 July 2021 Architex Level 02 – Block C 22 C 15 July 2021 Architex Level 03-04 – Block C 23 C 15 July 2021 Architex Level 05 – Block C 24 C 15 July 2021 Architex Level 06-08 – Block C 25 C 15 July 2021 Architex Roof Level – Block C 26 C 15 July 2021 Architex Level 02 – Block D 27 D 5 October 2021 Architex Level 03-04 – Block D 28 C 15 July 2021 Architex Level 05 – Block D 29 D 5 October 2021 Architex Level 06-08 – Block D 30 D 5 October 2021 Architex Roof Level – Block D 31 D 5 October 2021 Architex Level 02 – Block E 32 D 5 October 2021 Architex Level 03-04 – Block E 33 C 15 July 2021 Architex Level 05 – Block E 34 C 15 July 2021 Architex Level 06-08 – Block E 35 C 15 July 2021 Architex Roof Level – Block E 36 C 15 July 2021 Architex Level 02 – Block F 37 C 15 July 2021 Architex Level 03-04 – Block F 38 C 15 July 2021 Architex Level 05 – Block F 39 C 15 July 2021 Architex Level 06-08 – Block F 40 C 15 July 2021 Architex Roof Level – Block F 41 C 15 July 2021 Architex Elevations 42 F 5 October 2021 Architex Elevations 2 43 G 5 October 2021 Architex Elevations 3 44 G 5 October 2021 Architex 3D Building Height Plane 45 F 5 October 2021 Architex Section AA 46 F 5 October 2021 Architex Section BB 47 F 5 October 2021 Architex Section CC 48 F 5 October 2021 Architex Section DD 49 F 5 October 2021 Architex Section EE 50 F 5 October 2021 Architex Section FF 50a C 5 October 2021 Architex Driveway Sections 51 C 5 October 2021 Architex Site Details 1 52 C 5 October 2021 Architex Site Details 2 53 C 5 October 2021 Architex Site Details 3 53a B 5 October 2021 Architex Site Details 4 53b A 15 July 2021 Architex Post-Adaptable Layouts 54 A 6 April 2021 Architex 3D Study – Block A 55 B 15 July 2021 Architex 3D Study – Block B 56 B 15 July 2021 Architex 3D Study – Block C 57 B 15 July 2021 Architex 3D Study – Block D 58 C 5 October 2021 Architex 3D Study – Block E 59 B 15 July 2021 Architex 3D Study – Block F 60 B 15 July 2021 Architex 3D – Overalls 61 B 15 July 2021 Architex 3D – Overalls 2 62 B 15 July 2021 Architex L2 – Solar Access & Cross-Ventilation Diagrams 63 B 15 July 2021 Architex L3 - Solar Access & Cross-Ventilation Diagrams 64 B 15 July 2021 Architex L4 - Solar Access & Cross-Ventilation Diagrams 65 B 15 July 2021 Architex L5 - Solar Access & Cross-Ventilation Diagrams 66 B 15 July 2021 Architex L6-7 - Solar Access & Cross-Ventilation Diagrams 67 B 15 July 2021 Architex L9 - Solar Access & Cross-Ventilation Diagrams 68 B 15 July 2021 Architex FSR Calculations 69 B 15 July 2021 Architex FSR Calculations 2 70 B 15 July 2021 Architex Common Open Space & Deep Soil Diagrams 71 B 15 July 2021 Architex Shadow Diagram – 9am, 21 June 72 B 15 July 2021 Architex Shadow Diagram – 12 Noon, 21 June 73 B 15 July 2021 Architex Shadow Diagram – 3pm, 21 June 74 B 15 July 2021 Architex Amended Civil Plans Coversheet 000 I 15 October 2021 Orion Consulting General Layout Plan, Notes & Legend 001 I 15 October 2021 Orion Consulting Tree Removal & Demolition Plan 002 I 15 October 2021 Orion Consulting Sheet 01 of 02 Tree Removal & Demolition Plan 003 I 15 October 2021 Orion Consulting Sheet 02 of 02 Site Regrading Plan 004 I 15 October 2021 Orion Consulting Sheet 01 of 02 Site Regrading Plan 005 I 15 October 2021 Orion Consulting Sheet 02 of 02 Site Regrading Sections 006 I 15 October 2021 Orion Consulting Sheet 01 of 02 Site Regrading Sections 007 I 15 October 2021 Orion Consulting Sheet 02 of 02 Sediment & Erosion Control Concept Plan 100 I 15 October 2021 Orion Consulting Sheet 01 of 02 Sediment & Erosion Control Concept Plan 101 I 15 October 2021 Orion Consulting Sheet 02 of 02 Sediment & Erosion Control Notes & Details 102 I 15 October 2021 Orion Consulting Engineering Plan 200 I 15 October 2021 Orion Consulting Sheet 01 of 02 Engineering Plan 201 I 15 October 2021 Orion Consulting Sheet 01 of 02 Stormwater Management Plan – Basement 3 210 I 15 October 2021 Orion Consulting Stormwater Management Plan – Basement 2 211 I 15 October 2021 Orion Consulting Stormwater Management Plan – Basement 1 212 I 15 October 2021 Orion Consulting Stormwater Management Plan – Ground Floor 213 I 15 October 2021 Orion Consulting Stormwater Management Plan – Roof 214 I 15 October 2021 Orion Consulting Typical Road Cross Sections 300 I 15 October 2021 Orion Consulting Road Longitudinal Sections 301 I 15 October 2021 Orion Consulting Sheet 01 of 02 Road Longitudinal Sections 302 I 15 October 2021 Orion Consulting Sheet 01 of 02 Temporary Basin Catchment Plan 400 I 15 October 2021 Orion Consulting Interim Water Quality Catchment Plan 401 I 15 October 2021 Orion Consulting Drainage Long Sections 402 I 15 October 2021 Orion Consulting Sheet 1 of 3 Drainage Long Sections 403 I 15 October 2021 Orion Consulting Sheet 2 of 3 Drainage Long Sections 404 I 15 October 2021 Orion Consulting Sheet 3 of 3 Temporary Basin No.01 Plan, Sections & Details 405 I 15 October 2021 Orion Consulting Sheet 1 of 2 Temporary Basin No.01 Plan, Sections & Details 406 I 15 October 2021 Orion Consulting Sheet 2 of 2 Pump Well Details & Calculations 410 I 15 October 2021 Orion Consulting Drainage Calculations 420 A - Orion Consulting Sheet 01 of 04 Drainage Calculations 421 A - Orion Consulting Sheet 02 of 04 Drainage Calculations 422 A - Orion Consulting Sheet 03 of 04 Drainage Calculations 423 A - Orion Consulting Sheet 04 of 04 Rainwater Tank Details 430 A - Orion Consulting Water Quality Device Details 450 J 21 October 2021 Orion Consulting Amended Reports Schedule of amendments prepared Architex dated October 2021 Amended Statement of Environmental Effects prepared by Think Planners dated October 2021 Amended Clause 4.6 Variation Request – Height of Buildings – prepared by Think Planners dated 7 October 2021 Amended Access Report prepared by Vista Access Architects dated October 2021 Amended Traffic Impact Assessment Report prepared by EB Traffic Solutions dated 16 October 2021 Swept Paths Analyses prepared by EB Traffic Solutions dated 7 October 2021 Amended Acoustic Report prepared by Acouras Consultancy dated 7 October 2021 Certification and Assessment for a Child Care Centre prepared by Architex dated 28 September 2021 1. the amended development application was lodged on the planning portal on 2 November 2021. 2. the amended development application was filed with the Court on 26 October 2021. Orders 1. The Court Orders that: 1. The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amended development application as agreed or assessed. 2. The Applicant's amended written request under clause 4.6 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 prepared by Think Planners dated October 2021 seeking a variation of the development standard for height under clause 4.3 of the SEPP is upheld. 3. The appeal is upheld. 4. Development Consent is granted to SPP-20-00002 for a staged development including demolition of existing structures, tree removal, earthworks, road construction, civil and stormwater drainage works and dam dewatering. Development is in two stages: 1. Stage 1: Subdivision of 1 lot to create proposed Lot 1 zoned B4 for mixed use development with an area of 9698.9m2; proposed Lot 2 being a residue lot zoned R3 with an area of 3553.3m2; 1 lot for public roads (New Road 1, New Road 2, New Road 3, New Road 4); proposed Lot 3 being a residue lot zoned B4 and R3 with an area of 8106.1m2. 2. Stage 2: Construction of a large mixed-use development within proposed Lot 1 comprising a series of 6 x 8 storey buildings proposed to contain: 1. Total retail floor space with area of 2641m2 for 14 commercial tenancies including a future Gymnasium with GFA of 404m2 on the ground level; and a future Child Care Centre with GFA of 582.7m2 and outdoor play area of 700m2 on the ground level, 2. 236 residential units over 6 buildings (Blocks A – F) in the 7 storeys above the ground level retail and mixed-use development, with the following breakdown: 43 x 1 bedroom units; 145 x 2 bedroom units; 38 x 3 bedroom units; 10 x 4 bedroom units and 502 car parking spaces across Basements 1 – 3; and 3. Associated landscaping, and street tree planting. at 971 Richmond Road, Marsden Park, subject to conditions contained in Annexure 'A'. ………………………. E Espinosa Commissioner of the Court Annexure A (711105, pdf) Architectural Plans (31585122, 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 November 2021