Landmark Group Australia Pty Ltd v Blacktown City Council

Category: Principal judgment

Parties: Landmark Group Australia Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
C Ireland (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/289531

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: On 26 July 2018, development consent was granted for mixed use development on a site at 11-17 Second Avenue, Blacktown NSW 2148. In general terms, that development comprised two buildings of 18 storeys with ground floor retail and other uses on the levels immediately above, and further levels of residential apartments above that (the Initial Consent).

2. The Initial Consent was subsequently amended or modified on 6 December 2022, 3 September 2024, 17 October 2024 and 28 January 2026 in terms that are not relevant here.

3. On 2 May 2025, the applicant in these proceedings, Landmark Group Australia Pty Ltd (Landmark) lodged development application DA-25-00594 seeking consent for the change of use of 15 serviced apartments to 15 residential apartments on Level 1 of the development (the DA).

4. As the DA was otherwise undetermined, on 29 July 2025, Landmark commenced proceedings in the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).

5. The matter was initially listed before me for hearing on 24-25 March 2026. However, at the commencement of the hearing, parties advised the Court that all matters in dispute had been resolved and the parties sought for the matter to be re-allocated under s 34(1) of the Land and Environment Court Act 1979 (NSW).

6. On 24 March 2026, the matter was re-allocated in accordance with s 34(1) of the LEC Act at which I presided, and at which the parties reached in-principle agreement on the matters in contention.

7. A signed agreement was submitted to the Court on 24 March 2026, in accordance with s 34(10) of the LEC Act.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites, with respect to certain environmental planning instruments that must be satisfied before this function can be exercised, to the extent such matters are of relevance to the development the subject of the development application, in accordance with s 4.15 of the EPA Act.

9. The site is located within a Mixed Use zone, MU1, according to the Blacktown Local Environmental Plan 2015 (Blacktown LEP) in which residential flat buildings are permitted with consent, where consistent with the following objectives of development in the MU1 zone:

• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

10. The site is identified on the relevant Design Excellence map at cl 7.7(2) of the Blacktown LEP. I have considered those matters set out at cl 7.7(3) of the Blacktown LEP and note that no change is proposed by the development other than the proposed uses and use mix at Level 1 of the development, in respect of which the parties agree no issue arises as the design excellence.

11. The Council contends that the change proposed by the DA is contrary to the objective and controls found at cl 7.12 of the Blacktown LEP that are in the following terms:

7.12 Development in Zone MU1

(1) The objective of this clause is to promote employment opportunities on the land to which this clause applies.

(2) This clause applies to land in the Blacktown central business district that is within Zone MU1 Mixed Use, identified as “clause 7.12(2)” on the Key Sites Map.

(3) Development consent must not be granted to the erection of a building, or to a change of use of a building on land to which this clause applies, unless the consent authority is satisfied that the ground floor and first floor of the building will be used for a purpose other than residential accommodation.

12. In particular, the Council points to the proposed amendment to the strata plan SPP-21-00011 that had previously provided for the first floor to be other than residential accommodation, being instead ‘serviced apartments’.

13. Serviced apartments are a form of tourist and visitor accommodation, and the use is defined in the Dictionary of the Blacktown LEP as follows:

serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner’s or manager’s agents.

Note.

Serviced apartments are a type of tourist and visitor accommodation—see the definition of that term in this Dictionary.

14. Landmark relies on a written request prepared in accordance with cl 4.6 of the Blacktown LEP, prepared by Sutherland & Associates dated February 2026 to justify the contravention of cl 7.12 of the Blacktown LEP (the written request).

15. The written request identifies the variation sought to be confined to a change in residential uses on Level 1 of the development, from serviced apartments to residential apartments, while those residential uses on the ground floor would remain serviced apartments. As such the variation proposed is a variation of up to 50% of the development standard. For completeness, the variation is those apartments on Level 1 only.

16. The written request asserts that compliance with the standard at cl 7.12 is unreasonable and unnecessary as the objective of the standard at cl 7.12(1) is achieved notwithstanding the non-compliance.

17. The development promotes employment opportunities on the land by retaining the commercial uses on the ground floor, while the serviced apartments on Level 1 would generate negligible employment given property management and cleaning is likely to be infrequent.

18. At the same time, changing from a serviced apartment to a residential apartment may likewise generate employment, where leased for private rental that can also involve management and cleaning services.

19. The written request also advances environmental planning grounds it considers sufficient to justify the contravention, summarised as follows:

20. Firstly, the negligible difference between employment generated by serviced apartments or residential apartments is, in effect, a minor variation to the standard.

21. Secondly, the variation will not compromise the achieving of an active street edge as the perimeter of the ground floor continues to be commercial tenancies capable of accommodating uses that will promote employment, while the variation is limited to Level 1.

22. Thirdly, the Blacktown LEP currently shows negligible demand for serviced apartments, so the proposed variation replaces a use likely to be underutilised with one in high demand, is likely to be affordable given the degree of amenity afforded on Level 1, and is likely to support viability and use of commercial tenancies on the ground floor.

23. The town planning experts agree that converting serviced apartments to residential apartments in this particular instance promotes greater economic activity of the Blacktown CBD in line with the objectives of the MU1 zone and cl 7.12 of the Blacktown LEP, when compared to retaining the first floor of the building as serviced apartments for reasons summarised as follows:

24. The lack of investor demand for the approved serviced apartments demonstrated in the Joint Economic Report dated 12 February 2026 is such that there is a good probability that without change of use, Level 1 of the development would remain vacant. If vacant, Level 1 will contribute nothing to economic activity within the Blacktown CBD.

25. Even in the event that the serviced apartments were fully occupied, in terms of employment, they would still likely contribute nothing to the Blacktown CBD because operational functions would most likely be serviced from a remote location.

26. Conversely, the proposed conversion of Level 1 to residential apartments will promote economic activity within the Blacktown CBD as the 33 residents are estimated to have a total spend of $466,200 in retail expenditure annually, some of which will be captured through local spending, which would support 1-2 jobs.

27. Even in the very unlikely event that the serviced apartments were fully occupied, as the operational functions would most likely be serviced from a remote location, the serviced apartments would not generate more employment or activity within the Blacktown CBD when compared with the proposed residential apartments.

28. On the basis of the written request and the agreement of the experts, I am satisfied that Landmark has demonstrated those matters at cl 4.6(3) of the Blacktown LEP and I find the written request should be upheld.

State Environmental Planning Policy (Housing) 2021.

22. Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) requires the application be accompanied by a statement by a qualified designer, defined in the Dictionary at Sch 7 as a person registered as an architect in accordance with the Architects Act 2003 (NSW).

23. The statement is required by s 29 of the EPA Regulation to verify matters that are relevant to those matters that must be taken into consideration when determining a development application for residential apartment development, at s 147 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

24. The statement prepared by Mr Nicholas Byrne of DKO Architecture dated 19 March 2026 (Arch Reg No 7806) is consistent with the requirements at s 29 of the EPA Regulation, and so permits the Court to take into consideration those matters at ss 147, 148 and 149 of the Housing SEPP.

State Environmental Planning Policy (Sustainable Buildings) 2022.

25. The application is accompanied by a BASIX certificate for 339 apartment dwellings (Cert No.1239671M_07 dated 23 March 2026) prepared by Senica Consultancy Group Pty Limited in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

26. It is commonly held that the development is for alterations and additions to a building to which Sch 2 of the Sustainable Buildings SEPP applies and that the value of the development is not $76,795,454.50 as initially identified by Landmark in the development application. Instead, as an ‘amending DA’ the value of the development for which consent is sought, being the change of use, is less than $50,000.

27. For this reason, the jurisdictional statement argues that the provisions at s 2.1(5) of the Sustainable Buildings SEPP do not apply.

Conclusion

28. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

29. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

30. The Court notes that:

31. Blacktown City Council as the relevant consent authority, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), consented to the following amendments to development application No. DA-25-00594 in accordance with the following plans and documents:

| Tab | Documents | | 1. | Architectural drawings prepared by DKO Architecture: Drawing Description Rev. Date DA000 Cover Sheet I 18 November 2025 DA203 Basement 1 I 18 November 2025 DA204 Ground Floor Plan K 27 February 2026 | | Drawing | Description | Rev. | Date | | DA000 | Cover Sheet | I | 18 November 2025 | | DA203 | Basement 1 | I | 18 November 2025 | | DA204 | Ground Floor Plan | K | 27 February 2026 | | 2. | Design Verification Statement and Design Report prepared by DKO Architecture dated 19 March 2026 | | 3. | Revised Clause 4.6 Written Request (Clause 7.12 Development Standard) prepared by Sutherland & Associates Planning dated February 2026 | | 4. | Economic Assessment Report prepared by Urbis dated November 2025 | | 5. | BASIX Certificate 1239671M_07 issued 23 March 2026 | | 6. | Site Waste Management Report prepared by Senica dated 14 November 2025 |

2. Landmark filed the amended plans and other documents listed above on 24 March 2026.
3. As a result of the modification of the consent SPP-21-00011 required by the conditions in Annexure A, the conditions of consent to SPP-21-00011 will be in accordance with Annexure B.

Orders

31. The Court orders that:

32. The appeal is upheld.

33. Development application No. DA-25-00594 for alterations and additions to the existing building approved by SPP-21-00011 to change the use from 15 serviced apartments on Level 1 to 15 residential apartments at 11 Second Avenue, Blacktown NSW 2148 (also known as Lot 1, DP 1311357), is determined by grant of consent, subject to the conditions set out in Annexure A.

T Horton

Commissioner of the Court

Annexure A (193 KB, pdf)

Annexure B (493 KB, pdf)

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