Universal Property Group P/L v Blacktown City Council [2012] NSWLEC 1296

Land and Environment Court New South Wales

Medium Neutral Citation: Universal Property Group P/L v Blacktown City Council [2012] NSWLEC 1296 Hearing dates: 18 October 2012 Decision date: 23 October 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Development Application: mixed use development; building height; weight to be given to draft local environmental plan Legislation Cited: Blacktown Local Environmental Plan 1988 Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; State Environmental Planning Policy (State and Regional Development) 2011; Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Texts Cited: Draft Blacktown CBD Local Environmental Plan; Masterplan Blacktown City Centre Stage 1 Blacktown CBD; Metropolitan Plan for Sydney 2036 and North West Subregional Strategy Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant)

Blacktown City Council (Respondent) Representation: Counsel Mr I Hemmings (Applicant)

Mr M Seymour (Respondent) Solicitors Ms M Peatman Hunt and Hunt (Applicant)

Ms S Kelly DLA Piper (Respondent) File Number(s): 10442 of 2012

Judgment 1Universal Property Group P/L lodged Development Application JRPP-11-2391 with Blacktown City Council on 2 November 2011 seeking consent to erect a 20 storey mixed use commercial and residential development at Nos 1-7 Second Avenue Blacktown. 2By operation of Clause 21 of State Environmental Planning Policy (State and Regional Development) 2011 (SEPPSRD) and Schedule 4A of the Environmental Planning and Assessment Act 1979 (EP&AAct), the consent authority for the application is the Joint Regional Planning Panel (Panel) on the basis of capital investment greater than $20 million. The Panel has not determined the application and the applicant is appealing the deemed refusal of the application pursuant to the provisions of S97(1)(b) of the EP&AAct and Clause 113(1)(c) of the Environmental Planning and Assessment Regulation 2000. 3The applicant has been granted leave by this Court to rely on amended plans on two occasions, the most recent time at the commencement of this hearing where leave was granted to rely on the "Issue E & F" plans. Those plans were prepared following a s 34 conciliation conference conducted by another Commissioner of the Court and addressed many of the contentions in the case. There was one matter remaining and that is the height of the building. The council contends that the height of the proposed development should comply with the height control that is contained in the Draft Blacktown CBD Local Environmental Plan (draft BCBDLEP). The applicant disagrees and says that consent should be granted as the application is fully compliant with the council's planning controls and satisfies the objectives of the draft plan. 4On the day prior to the hearing, the council received advice from the Department of Planning (exhibit 3) that indicated that the draft plan is the subject of internal review and that it is not likely to be made for at least 3-6 months. Accordingly, the council conceded the plan is neither imminent nor certain and did not press the remaining contention. 5It is necessary that I determine the application in accordance with the provisions of s 79C of the Act.