Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Penrith City Council [2017] NSWLEC 1611 Hearing dates: 24,25 October 2017, conditions 27 October 2017 Date of orders: 01 November 2017 Decision date: 01 November 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application No. 16/0789 for subdivision and construction of three residential flat buildings with associated basement car parking, drainage and landscaping works at 16 Chapman Street Werrington is approved subject to the conditions in Annexure A. 3. The exhibits are retained with exception of exhibits A and C. 4. The applicant agrees to pay the council's costs thrown away as a result of the amendments to the original application. Catchwords: DEVELOPMENT APPLICATION: construction of three residential flat buildings; amended plans address contentions raised by council; no delegation to enter into agreement or consent orders; resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No. 65 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: Mr C McEwen SC (Applicant) Mr S Nash, barrister (Respondent) Solicitors: Swaab Attorneys (Applicant) Sparke Helmore.(Respondent) File Number(s): 2017/63151 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 16/0789 for subdivision and construction of four residential flat buildings (comprising 138 apartments) within one of the proposed allotments with associated basement car parking, drainage and landscaping works at 16 Chapman Street Werrington (the site). 2. The plans were amended on a number of occasions with the plans which the applicant seeks consent provide for the construction of three residential flat buildings comprising 23 x 1 bedroom apartments, 55 x 2 bedroom apartments and 17 x 3 bedroom apartments (comprising 95 apartments) with provision for 135 parking spaces (the appeal plans). 3. The council maintains that the application filed with the Court should be refused for the following reasons: * extent of proposed development application, * urban design quality, * town planning considerations, specifically including matters that do not satisfactorily address the Apartment Design Guide, * landscape design, * traffic management and road design, * biodiversity, vegetation management and bushfire protection, * water sensitive urban design, * stormwater drainage, and * waste management. 1. A number of residents provided evidence on the site inspection and raised the following concerns: * height, * overshadowing, * loss of privacy, * traffic and parking congestion, * appearance, * encroachment onto Webb Street, and * congestion at intersection of Rance Road and Werrington Road. The site 1. The site is part of land in Lot 102 DP 1140594 with a total area of 27.98 ha. It is an irregular shaped allotment with a length of 455.05m along its western boundary and a width of approximately 700m along its north-south axis. The site has frontage to an unformed road reserve (Webb Street) adjoining the eastern boundary being 80.89m in length. The dimensions of the proposed lot containing the residential flat buildings measure 66.18m to the south, 88.13 m to the north, 83.40m to the west and 80.89 m to the east. 2. The site is approximately 400m south west of Werrington Railway station. The land is surrounded to the north and east by medium density multi-unit housing developments. Cobham Juvenile Justice Centre is situated south of the site and the University of Western Sydney is located west of the site. Relevant planning controls 1. Lot 102 is zoned part R4 - High Density Residential, Part R1 - General Residential, Part RE1 - Public Recreation and Part IN2 - Light Industrial under Penrith Local Environmental Plan 2010 (LEP). The part of the site affected by the proposed residential flat building development is zoned R4 - High Density Residential and Part RE1 - Public Recreation. The proposed development is a permissible use in the R4 zone. Land directly adjoining the site to the north and north east is zoned R3 Medium Density Residential. 2. Clause 2.3(2) of LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone and the objectives of the R4 zone are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage the provision of affordable housing. • To ensure that development reflects the desired future character and dwelling densities of the area. 1. Clause 2.6(1) of the LEP provides that land to which the LEP applies may be subdivided, but only with development consent. Clause 4.1 of the LEP and the lot size map do not prescribe a minimum lot size for this site. Clause 4.1 A of the LEP requires a minimum lot size of 800m2 for a residential flat building on a standard lot. Clause 4.3 of the LEP and the height of buildings map prescribe a maximum building height of 15m. It was agreed that the 15m height standard was exceeded and that a written request under cl 4.6 was provided to support the variation to the development standard. 2. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)). 3. Penrith Development Control Plan 2014 (DCP) applies to the land and the following parts of the DCP are relevant to this application: * C4 Land Management * C10 Transport, Access and Parking * C11 Subdivision * C13 Infrastructure and Services * E12 Part C South Werrington Urban Village Precinct. The evidence 1. Expert reports were provided by: * Mr Gavin Cherry (council) and Mr Paul Grech (applicant) on town planning matters, * Mr Brett Newbold (council) and Mr David Wolski (applicant) on urban design matters, * Ms Jenna Andrews (council) and Mr John Travers (applicant) on biodiversity matters, * Mr Joshua Romeo (applicant) and Mr Paul Grech (applicant) on waste room matters, * Mr Graham Green (council) and Mr Geoff Higgins (applicant) on traffic and parking matters, * Mr Tim Gowing (council) and Mr Richard Dekker (applicant) on water quality matters, * Mr Dennis Urena (council) and Mr Richard Dekker (applicant) on stormwater matters, and * Mr Joshua Romeo (applicant) and Mr Geoff Higgins (applicant) on waste and traffic matters. The contentions Height 1. Mr Cherry and Mr Grech agree that the proposed development does not satisfy the 15m height development standard in cl 4.3 of the LEP. A written request was provided by the applicant to show why strict compliance with the 15m development standard need not be complied with, in this case. 2. Mr Cherry accepts that the variation to the 15m development standard can be supported for the reasons set out in the written request and having read this document, I support his conclusion and agree that the variation can be supported. The appeal plans 1. The expert reports addressed versions of the plans that were prepared prior to the preparation of the appeal plans although they identified significant areas of agreement. Where there was a disagreement, a means of addressing the contention was also agreed to by the experts. Not unreasonably, the council sought that these amendments be shown on a fresh set of plans – these plans became the appeal plans. 2. A major difference between the parties centred on the unconstructed section of Webb Street that adjoined the site to the east. At the commencement of the hearing on site, the parties advised the Court that the outstanding contention relating to the unconstructed section of Webb Street had been addressed through a Voluntary Planning Agreement (VPA) which required this area embellished by the applicant. The VPA was endorsed by the elected council on 23 October 2017 and is a condition of consent. 3. A further joint report was provided by the town planning and urban design experts (town planners Gavin Cherry (council) and Mr Paul Grech (applicant) and urban designers Mr Brett Newbold (council) and Mr David Wolski (applicant)) on the appeal plans. They state: The plans as presented to us on 25 October 2017, in conjunction with attached list of documents are sufficient to enabler a proper assessment of the application and resolve all town planning and urban design contentions subject to refinement of conditions. 1. The conditions referred to by the experts were filed on 27 October 2017 and were agreed by the parties. 2. Having read the joint reports, the conditions of consent and with an understanding of the appeal plans, I agree with the various experts that there are no reasons why the appeal plans should not be granted development consent. Resident objections 1. The residents raised the following concerns: 1. Height * The height of the three proposed buildings is addressed earlier in the judgment and the relatively small variation was considered acceptable. 1. Overshadowing * Given the location of the existing residential development to the east and separated by the unconstructed area of Webb Street there is unlikely to be any overshadowing created by the proposed development. 1. Loss of privacy * The separation created by the unconstructed area of Webb Street provides a more than sufficient barrier to minimise any potential overlooking between the proposed development and the existing development to the east. 1. Traffic and parking congestion * Mr Green and Mr Higgins agree that here are no unacceptable traffic or parking issues associated with the proposed development and I accept their conclusion. 1. Appearance * Mr Newbold and Mr Wolski have reviewed the appeal plans from a design perspective and agree that the design is acceptable. 1. Encroachment onto Webb Street * The appeal plans remove any building from the unconstructed section of Webb Street and its embellishment by the applicant. 1. Congestion at intersection of Rance Road and Werrington Road. * A condition of consent requires a roundabout to be constructed at this intersection, to a design acceptable to council. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 16/0789 for subdivision and construction of three residential flat buildings with associated basement car parking, drainage and landscaping works at 16 Chapman Street Werrington is approved subject to the conditions in Annexure A. 3. The exhibits are retained with exception of exhibits A and C. 4. The applicant agrees to pay the council's costs thrown away as a result of the amendments to the original application. __________ G Brown Commissioner of the Court Annexure A (C) (327 KB, pdf) 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: 01 November 2017