Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1623 Hearing dates: Conciliation conference on 27 August 2019 Date of orders: 17 December 2019 Decision date: 17 December 2019 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: APPEAL – modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2019/34399 Publication restriction: No Judgment 1. COMMISSIONER: On 2 November 2018, the applicant lodged a modification application pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 ("EPA Act") with Blacktown City Council. The application seeks to modify conditions of development consent JRPP-15-02480 approved by the Joint Regional Planning Panel on 8 March 2017 for the construction of two 5-storey residential flat buildings comprising 171 units at land known as 15A & 15B Pelican Road, Schofields. The modifications that are sought increase the number of units from 171 to 195 units, increase car parking from 236 car parking spaces to 269 car parking spaces, and include associated works including increase in landscaping, reduction of deep soil planting and decrease in communal open space. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 27 August 2019. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons: * Qualitatively, the proposal results in two 5-storey residential flat buildings consistent with the building approved by the development consent. * Quantitatively, the proposed residential flat building as modified provides an increase in apartment yield with 24 additional apartments. However, there is only marginal change in site coverage and gross floor area. The increase in apartment yield results from a change in unit mix to a higher proportion of studio units. This quantitative change in apartment yield is not sufficiently significant (given the overall apartment yield) to render the proposal as modified something that is not substantially the same as what was the subject of the consent. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The Applicant is granted leave to amend its modification application to: 1. rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural plans and supporting documents DA000, Rev B Cover sheet The Bathla Group 12 August 2019 DA001, Rev F Compliance Table 11 November 2019 DA002, Rev A Site Analysis/Existing 12 October 2019 DA003A, Rev A Site Plan Permanent Foot Path 27 September 2019 DA003, Rev B Site Plan with Interim Footpath 27 September 2019 DAA3, Rev A Site Plan 12 October 2018 0015, Rev A Extent of Basement 5 September 2019 DA100, Rev F Basement 1 11 November 2019 DA101, Rev F Lower Ground 11 November 2019 DA102, Rev G Ground Level 11 November 2019 DA103, Rev C Level 1 27 September 2019 DA104, Rev C Level 2 27 September 2019 DA105, Rev C Level 3 27 September 2019 DA106, Rev C Level 4 27 September 2019 DA107, Rev B Roof 12 August 2019 DA108, Rev B Typical Adaptable & Livable Units 12 August 2019 DA109, Rev B Floor Space Ratio Diagrams 12 August 2019 DA110, Rev C Landscape Deep Soil and COS 5 September 2019 DA111, Rev B Building Height Diagrams 12 August 2019 DA112, Rev A Communal Open Space Access 27 September 2019 DA113, Rev A Dimensioned Layout Block A & B 27 September 2019 DA114, Rev A Dimensioned Layout Block C & D 27 September 2019 DA115, Rev A Mail Box Details in Lobby 27 September 2019 DA200, Rev B Sections 1 12 August 2019 DA201, Rev B Sections 2 12 August 2019 DA202, Rev B Sections Showing 4.5M Min Clearance 12 August 2019 DA203, Rev C Balcony & Floor Height Details 2 October 2019 DA204, Rev A Typical POS Detail 12 August 2019 DA300, Rev C Elevations 27 September 2019 DA400, Rev B Sun Eye Perspectives Diagram 12 August 2019 DA401, Rev B Shadow Diagrams 12 August 2019 DA402A, Rev A Solar Access – LG & G 21ST June 12 August 2019 DA402B, Rev A Solar Access - G & L1 21st June 12 August 2019 DA402C, Rev A Solar Access – L1 & L2 21st June 12 August 2019 DA402D, Rev A Solar Access – L3 & L4 21st June 12 August 2019 DA402, Rev B Solar Access Compliance Diagrams 12 August 2019 DA500, Rev C Photo Montage 27 September 2019 DA501, Rev C Colour and Material Schedule 5 September 2019 DA600, Rev B Cross Ventilation 12 August 2019 Works as executed plan 7663 190810 (Ref 7663) Work as Executed - Basement SDG Land Development Solutions 9 October 2019 Landscaping Plans N/A Cover Sheet Conzept Landscape Architects Undated LPDA20-48, Sheet LP01, Rev B Masterplan 26 September 2019 LPDA20-48, Sheet LP02, Rev B Open Space (BLDG A-B) LPDA20-48, Sheet LP03, Rev B Open Space (BLDG B-C) LPDA20-48, Sheet LP04, Rev B Open Space (BLDG C-D) LPDA20-48, Sheet LP05, Rev B Hardscape Plan LPDA20-48, Sheet LP06, Rev B LP06 – Details LPDA20-48, Sheet LP07, Rev B LP07 – Details 2 LPDA20-48, Sheet LP08, Rev B Section (Building B – C) Turn Path Plans N/A 8.8m MRV Truck Swept Turning Path Varga Traffic Planning 9 August 2019 Engineering Plans 000, Rev G Cover Sheet Australian Consulting Engineers 15 September 2019 101, Rev G Stormwater Concept Plan, Basement 1 Level Sheet 1 of 3 102, Rev G Stormwater Concept Plan, Basement 1 Level Sheet 2 of 3 103, Rev G Stormwater Concept Plan, Basement 1 Level Sheet 3 of 3 104, Rev G Stormwater Concept Plan Lower Ground Level Sheet 1 of 2 105, Rev G Stormwater Concept Plan Lower Ground Level Sheet 2 of 2 106, Rev G Stormwater Concept Plan Ground Level Sheet 1 of 2 107, Rev G Stormwater Concept Plan Ground Level Sheet 2 of 2 108, Rev G Bio-Retention Details 109, Rev G Music Model Catchment Breakdown & Details 110, Rev G Miscellaneous Details Sheet 1. The appeal is upheld. 2. Modification Application MOD-18-00586 to modify Development Consent JRPP-15-02480 approved by the Joint Regional Planning Panel on 8 March 2017, is approved in accordance with the modifications set out in Annexure "A". 3. As a consequence of Order 3, Development Consent JRPP-15-02480 is now subject to the consolidated, modified conditions of development consent set out in Annexure "B". ………………………… J Gray Commissioner of the Court Annexure A (98.3 KB, pdf) Annexure B (243 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: 24 December 2019