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. Planning framework 7The site is zoned 2(a) pursuant to the Blacktown Local Environment Plan 1988 (LEP 1988) and the proposal for multi dwelling housing is permissible with consent. The objectives of the 2(a) zone at cl 9 of LEP 1988 are as follows: (a) to make general provision to set aside land to be used for the purpose of housing and associated facilities, (b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings, (c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality, (d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy, (e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and (f) to allow within the zone a range of non-residential uses which: (i) are capable of visual integration with the surrounding environment, (ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone, and (iii) do not place demands on public services beyond the level reasonably required for residential use. 8The draft Blacktown Local Environment Plan 2013 (Draft LEP 2013) has been referred to the NSW Department of Planning and Infrastructure. The Council submits that the plan is neither imminent, nor certain and it contains a savings provision for development applications made before the commencement of the plan. However, pursuant to s 79C(1)(a)(ii), the relevant provisions of the Draft LEP 2013 are to be taken into consideration in assessing the proposal, as the plan has been the subject of public consultation. 9The site is zoned R2 Low Density pursuant to the Draft LEP 2013 and the proposal is prohibited. The minimum lot size is 450sqm (sheet LSZ_013 LEP 2013 as adopted), the maximum height of buildings is 9m (sheet HOB_013 LEP 2013 as adopted) and there is no maximum Floor Space Ratio (FSR) development standard for the site (FSR_013 LEP 2013 as adopted). The objectives of the R2 zone are as follows: To provide for the housing needs of the community within a low density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood. 10The Council submits that the proposal complies with the relevant development controls for medium density housing in Part C, Section 6 of Blacktown Development Control Plan 2006 (DCP 2006), as follows: * 6.3 Site requirements: minimum width when measured at the building setback line to the street frontage to be no less than 26m, as the proposal has a width of 90m when measured at the building setback line to the Meurants Lane street frontage; * 6.4 Building Setbacks: 6m in newer 'release area' localities, as the proposal has a setback of 6m form the Meurants Lane boundary; * 6.7 Building height: two storey buildings will not be permitted above 7.2m, as the proposal is less than 7.2m in height; * 6.12 Off-street car parking: two per 3 bedroom dwelling and 1 visitor per 2.5 dwellings, as the proposal provides 36 car spaces and visitor parking in each driveway. Number of dwellings and private open space 11The proposal is for 18 lots, each with a free standing dwelling. Each dwelling has a minimum of 100sqm of private open space. 12No contention was raised by Council regarding the lot sizes or the number of dwellings. I accept the Council's submission that the proposal, in terms of the number of dwellings and private open space areas, complies with the relevant development controls and is acceptable. 13I am satisfied that the proposal is consistent with the 2(a) zone objectives, as the proposed villas are of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality and does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy. Traffic 14Mr Robert Varga, Director of Varga Traffic Planning Pty Ltd, a traffic expert engaged by the applicant, provided the following evidence (exhibit B): According to the RMS Guidelines, 18x 3 (or more) bedroom dwellings would generate 11.7 vehicles per hour during peak periods, and less at other times. That level of traffic activity could be easily accommodated in Meurants Lane which performs the function of a "collector road" and therefore has an 'environmental capacity' of 500vph according to the RMS guidelines. 15The Council submits that the proposal has been assessed by Council's traffic engineers and they concur with Mr Varga's expert opinion. 16I accept Mr Varga's evidence and Council's agreement. Conclusion 17I accept the agreement of the parties that the amendments to the proposal and additional information provided by the applicant have addressed Council's contentions in relation to the proposal. 18I am satisfied that the proposal is consistent with the 2(a) zone objectives of LEP 1988 that the proposal is not antipathetic to the R2 zone objectives of the Draft LEP 2013, as it provides for the housing needs of the community. 19In considering the amended plans and documents and agreed conditions of consent and taking into consideration the issues raised by the objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances. Orders 20The orders of the Court are: 1.By consent, the appeal in respect of Lot 204 in DP 1001317, Lot 3 in DP 1013418 and Lots 3 & 4 in DP 1122000 being land known as No. 92-94 Meurants Lane and No. 10 Angel Court, Glenwood, is upheld. 2.The Applicant is granted leave to amend the development application and rely upon the following amended plans, contained at Annexure 'A', in the proceedings: Drawing No Plan/Document Revision Architectural Plans DA01/05 Site Analysis, Compliance Table, Location Map and Basix Issue R04, dated 11/07/14 DA02/05 Ground Floor Plan Issue R04, dated 11/07/14 DA03/05 First Floor Plan & Area Schedule Issue R04, dated 11/07/14 DA04/05 Elevations & Sections Issue R04, dated 11/07/14 DA05/05 Shadow Analysis Issue R04, dated 11/07/14 Landscape Plan LP01/01 Concept Landscape Plan Issue R04, dated 11/07/14 Engineering Plans 1736-DA SW001 Stormwater Layout Plan, Ground Floor, Enviropod Pit Details and Notes Revision E, dated 14/07/14 1736-DA SW001 Stormwater Layout Plan, Ground Level Cont'd and Enviropod Pit Details Revision E, dated 14/07/14 1736-DA SW001 Stormwater Layout Plan Roof Level and Rainwater Tank Details Revision C, dated 14/07/14 1736-DA SW001 Music Model Catchment Plans, Stormfilter Systems, Enviropod, Section and Notes Revision D, dated 14/07/14 Other Documents BASIX Certificate 527855M_04, dated 30 June 2014 Deposited Plan of Subdivision Revision F, dated 14 July 2014 Draft S88B Instrument, undated Draft Community Management Statement, undated Stormwater Quality Management Plan for Lot 17, Revision A, dated May 2014 Stormwater Quality Management Plan for Lots 9-16, Revision E, dated July 2014 3.Development Application No. 14-192 as amended, for the subdivision into 18 lots and subsequent construction of 18 dwellings in an integrated housing development, including common access way, driveways and landscaping works, is approved, subject to conditions contained in Annexure 'B'. 4.The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application, as agreed or assessed, pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979. 5.The exhibits, other than exhibits 2 and C, are returned. Susan O'Neill Commissioner of the Court ********** 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: 31 October 2014