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. Satisfaction as to Jurisdiction 1. Taking into account the parties advice in the Statement, I am satisfied in regard to the jurisdictional matters et out below. Section 4.55 – Environmental Planning and Assessment Act 1979 1. The Modification Application and the Amended Modification Application were made pursuant to s 4.55(2) of the EPA Act. In this regard, the parties agreed that the development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted. 2. Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against: 1. Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended; and 2. The reasons given by the consent authority for the grant of the Consent. 1. I have read the parties detailed analysis in the agreed Statement, paragraphs 17 to 31, of the application of s 4.55 EPA Act and relevant caselaw to this MOD and accept and agree that no jurisdictional impediment applies to the grant of the MOD by the Court and the making of consequential orders set out below amending the development application No SPP-17-00024. State and Local Environmental Planning Instruments 1. Statutory planning controls applicable to the Site and the proposed development were considered in the initial assessment and ultimate grant of consent. I note pursuant to an agreement under s 34(3)(a) of the LEC Act, Commissioner Chilcott granted consent: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1358. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage and as referred to in the previous Judgment such that I am required to re-consider each of the relevant Environmental Planning Instruments and planning controls. 2. I refer to the detailed analysis undertaken in the Statement and accept the agreed position of the parties that no jurisdictional impendent arises in respect of the applicable statutory planning controls, paragraphs 33 to 56 of the Statement. Conclusion 1. Based on the evidence before me and submissions made to me in Court, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Notations 1. The Court notes that: 1. The Respondent, as the relevant consent authority, has approved, pursuant to s 113 of the Environment Planning and Assessment Regulation 2021, the Applicant further modifying the application made directly to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979, and as formally amended by the Applicant with leave granted by the Court on 30 October 2024, to modify Development Consent SPP-17-00024 in accordance with the amended plans and documents filed with the Court and as described in the table below: Drawing No and Revision Title Prepared by Date Architectural Plans Lot 5 DP1264542 1. Drawing No. S4.55(8) 5.08, Issue I Basement 1 Plan Universal Property Group 6 November 2024 Drawing No. COM 5.03, Issue 4 Basement 1 The Bathla Group 6 November 2024 Lot 11 DP1264542 2. Drawing No. S4.55(8) 11.02, Issue I Compliance Table The Bathla Group 6 November 2024 Drawing No. S4.55(8) 11.08, Issue I Basement 1 Plan 6 November 2024 Drawing No. S4.55(8) 11.10, Issue I Ground Floor 6 November 2024 Drawing No. COM 11.01, Issue 4 Compliance Table - Comparison 6 November 2024 Drawing No. COM 11.03, Issue 4 Basement 1 - Comparison 6 November 2024 Drawing No. COM 11.05, Issue 4 Ground Floor - Comparison 6 November 2024 Documents 3. BASIX Certificate No. 1318011M_03 SLR Consulting 11 November 2024 4. BASIX Certificate No. 1318589M_03 SLR Consulting 11 November 2024 5. BASIX Certificate No. 1318936M_03 SLR Consulting 11 November 2024 Orders 1. 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. L Byrne Acting Commissioner of the Court ********** Annexure A Annexure B 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: 17 January 2025