Wardan Developments Pty Limited v Blacktown City Council [2003] NSWLEC 228

> Land and Environment Court of New South Wales

CITATION : Wardan Developments Pty Limited v Blacktown City Council [2003] NSWLEC 228 PARTIES : Wardan Developments Pty Limited Blacktown City Council FILE NUMBER(S) : 10208 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Solar Access Common open space State Environmental Planning Policy No 65 - Design Quality, (SEPP65) LEGISLATION CITED: Blacktown Local Environmental Plan 1988, (BLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: Coffs Harbour Environment Centre v Coffs Harbour 1991 74 LGRA 185 DATES OF HEARING: 13, 14 and 15 August 2003 and mention 3 October 2003 DATE OF JUDGMENT: 10/08/2003

APPLICANT Mr J Maston, barrister, instructed by Mr P Tohme, solicitor SOLICITORS LEGAL REPRESENTATIVES: Greenaway & Tohme RESPONDENT Mr C T Drury, solicitor SOLICITORS Phillips Fox

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OR NEW SOUTH WALES Matter No. 10208 of 2003 Coram: Watts C Decision date: 8 October 2003

WARDAN DEVELOPMENTS PTY LIMITED

Applicant

v

BLACKTOWN CITY COUNCIL

Respondent

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Blacktown City Council (the council) of a development application to erect a four-storey residential flat building comprising thirty-four (34) dwellings with basement car parking and rooftop recreation areas at Lots 2001-2007 DP 1040624, being Nos 36-40 Clonmore Street and Nos 16-22 Kilmore Street, Kellyville Ridge. 2 I visited the site in company with the parties on the morning of the second day of the proceedings. 3 I have concluded that the application should succeed as the provision of common open space and solar access would be satisfactory. Taking into account these and other factors the application would not warrant refusal. The land 4 The land is situated on the northern side of Kilbenny Street and has frontage to Clonmore, Kilbenny and Kilmore Streets at Kellyville Ridge to the north of Blacktown Town Centre on Old Windsor Road. It has a frontage to Kilmore Street of 52.916m (including the corner splay) to Clonmore Street of 65.65m (including the corner splay) giving an area of some 3437.5m2. There is a slight slope down to the southeastern corner. 5 The subject land, forms part of the Residential 2(c) zoned land, which lies between Clonmore Street and Windsor Road. Multi-unit developments are currently under construction on land nearby to the east of the land in the 2(c) zone. A further area of land zoned 3(b) special business is located south of the 2(c) land, near the entrance to the Kellyville Ridge estate. Within this latter zone is located a service station and a McDonalds restaurant. 6 The scale and style of residential development nearby to the west, comprises single-storey and two-storey detached housing and the subdivision pattern in that area, is a conventional layout with lots of around 450m2. Relevant planning controls State Environmental Planning Policy No 65 – Design quality, (SEPP65) 7 SEPP65 applies to the land. Under cl 32 the recent amendments made to SEPP65 do not apply to a development application made but not finally determined before the commencement of those amendments in Amendment No 1 [Note: Exhibit 16 p 13]. Thus the Better Urban Living Guidelines applies under cl 30 of Amendment No 1 rather than the Residential Flat Design Code. Blacktown Local Environmental Plan 1988, (BLEP) 8 The BLEP applies to the land and the proposal is permissible with consent in the Residential 2(c) zone. 9 Clause 9(3) of the BLEP states: Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out. 10 Relevant aims and objectives of the BLEP include [Note: Exhibit 2 p 18] : - Aim (a): to repeal all local planning controls applying to Blacktown and replace them with a single local environmental plan; - Aim (b): to simplify and modernise the development controls applying to Blacktown; - Aim (c): to speed up the planning process in Blacktown by placing in the council's hands broader responsibility for environmental planning of local significance; and - Aim (d): to maintain the opportunity for public involvement and participation in environmental planning and assessment by using development control plans to supplement the broad controls in the plan. - Objective (b): to allow for a variety of residential lifestyles. 11 The objectives of the 2(c) zone under the BLEP are: 1(a) – to make general provision to set aside land to be used for the purposes of housing and associated activities;