Universal Property Group Pty Ltd v Blacktown City Council (No 2) [2025] NSWLEC 1017

Land and Environment Court New South Wales

Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council (No 2) [2025] NSWLEC 1017 Hearing dates: Conciliation Conference on 26 November 2024 Date of orders: 17 January 2025 Decision date: 17 January 2025 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No SPP-17-00024 is modified in the terms set out in Annexure A. (3) Development consent No SPP-17-00024, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B. Catchwords: APPEAL – MODIFICATION - subdivision and construction residential flat buildings - conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicants) Blacktown City Council (Respondent) Representation: Counsel: E Flemming (Solicitor) (Applicant) J King (Solicitor) (Respondent)

Solicitors: Macpherson Kelley (Applicant) Lindsay Taylor (Respondent) File Number(s): 2024/188355 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal in respect of a modification application made directly to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The modification application (the MOD) is to amend the approved development in relation to internal changes to apartment layouts, changes to the basement configuration and façade materials. 2. The MOD applies to development consent No SPP-17-00024 which approved the subdivision and construction of 6 residential flat buildings (RFB) over three super lots created from a separate subdivision (DA-16-03182) including access driveway, basement car parking, stormwater drainage and landscaping. The subject parcels of land are lots 5, 9 and 11 in DP 1264542 and known as McGaw Street, Gribbin Street and Abell Road, Marsden Park 2765, formerly proposed Lots 5, 9 and 11 in the re-subdivision of Lot 4 DP1245610 (approved in DA–16–03182) formerly known as 1086 Richmond Road, Marsden Park NSW 2765. 3. On 30 October 2024, the Court granted leave to the Applicant to amend the modification application in accordance with the amended plans and supporting material set out in the Applicant's notice of motion filed on 23 October 2024 and contained in Exhibit EJF-1 to the Affidavit of Emma Jane Fleming affirmed on 22 October 2024. 4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at Court on the 26th of November 2024. 5. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. Council accordingly approved the amendment to the Applicant's modification application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021. 6. Under s 34(3) of the LEC Act, I must dispose of the Class 1 proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' decision requires the Court, exercising the function under s 4.55(2) of the EPA Act, to grant the modification to the development consent. 8. The parties' experts agree that all contentions raised in the Respondent's Statement of Facts and Contentions (SOFAC) filed on 22 July 2024 have been resolved by: 1. the amended plans and supporting material set out in the Applicant's notice of motion filed on 23 October 2024 and contained in Exhibit EJF-1 to the Affidavit of Emma Jane Fleming affirmed on 22 October 2024, and for which the Court granted leave to the Applicant to rely upon on 30 October 2024, 2. the amended plans and supporting material referred to at Paragraph 2 of the agreement between the parties under s 34(3) of the LEC Act (s 34 Agreement), and 3. the agreed modified conditions of consent. 1. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement ("the Statement") provided to the Court.