Universal Property Group v Blacktown City Council [2014] NSWLEC 1222

Land and Environment Court New South Wales

Medium Neutral Citation: Universal Property Group v Blacktown City Council [2014] NSWLEC 1222 Hearing dates: 29 September and 28 October, 2014 Decision date: 31 October 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: By consent, the appeal is upheld Catchwords: DEVELOPMENT APPLICATION: consent orders; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Universal Property Group (Applicant) Blacktown City Council (Respondent) Representation: Ms F. Berglund Barrister (Applicant) Mr D. Loether Solicitor (Respondent) Hunt and Hunt Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 10210 of 2014

Judgment 1COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979, comes before the Court for consent orders in relation to Development Application No. 14-192 for the subdivision of 92-98 Meurants Lane and 10 Angel Court, Glenwood (the site) into 18 allotments and subsequent construction of 18 dwellings (the proposal). 2The appeal was subject to mandatory conciliation on 25 June 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 2 September 2014, pursuant to s 34(4) of the LEC Act. 3Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original proposal. The changes made to the proposal can be summarised as: * Internal road entry to the site from Meurants Lane narrowed to 4m wide with landscaping added either side; * Profile of the internal road amended to provide adequate sightlines; * Driveway to Units 10 and 15 amended for improved vehicle access; * Roof profile of Units 5, 6, 16 and 17 changed; * Roof profile of Units 1, 5, 6, 8, 10, 11, 12 and 16 changed due to modified layout; * Unit footprint and internal layout amended for Units 1, 5, 6, 8, 9, 10, 11, 12, and 16; * Tree in the north-eastern corner of the site retained; * Drainage lines and pits added. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval, having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5The consent orders hearing commenced in Court on 29 September 2014. At that time, Mr Loether advised the Court that the objectors had not been notified of the hearing, nor had they been provided with the content of the proposed orders and the conditions of consent. As a consequence, the hearing was adjourned and the parties directed to approach the Court's Registry for a new hearing date and the Respondent was to notify the objectors of that date. 6Resident objectors were invited to attend the hearing on site on 28 October 2014 and give evidence. Three resident objectors provided evidence on site. They had not been provided with the content of the proposed orders and the conditions of consent. Mr Loether was directed to show and explain the proposed orders and conditions of consent to the objectors, before they gave evidence and he did so. Their objections to the proposal can be summarised as: * There are too many dwellings on the site. * The private open space for each dwelling is insufficient. * The traffic generated by the proposal will significantly exacerbate the existing peak hour congestion along Meurants Lane, which is congested as it is a feeder road to the M7 motorway nearby.