Universal Property Group P/L v Blacktown City Council

Judgment 1Universal Property Group P/L lodged Development Application JRPP-11-2391 with Blacktown City Council on 2 November 2011 seeking consent to erect a 20 storey mixed use commercial and residential development at Nos 1-7 Second Avenue Blacktown. 2By operation of Clause 21 of State Environmental Planning Policy (State and Regional Development) 2011 (SEPPSRD) and Schedule 4A of the Environmental Planning and Assessment Act 1979 (EP&AAct), the consent authority for the application is the Joint Regional Planning Panel (Panel) on the basis of capital investment greater than $20 million. The Panel has not determined the application and the applicant is appealing the deemed refusal of the application pursuant to the provisions of S97(1)(b) of the EP&AAct and Clause 113(1)(c) of the Environmental Planning and Assessment Regulation 2000. 3The applicant has been granted leave by this Court to rely on amended plans on two occasions, the most recent time at the commencement of this hearing where leave was granted to rely on the "Issue E & F" plans. Those plans were prepared following a s 34 conciliation conference conducted by another Commissioner of the Court and addressed many of the contentions in the case. There was one matter remaining and that is the height of the building. The council contends that the height of the proposed development should comply with the height control that is contained in the Draft Blacktown CBD Local Environmental Plan (draft BCBDLEP). The applicant disagrees and says that consent should be granted as the application is fully compliant with the council's planning controls and satisfies the objectives of the draft plan. 4On the day prior to the hearing, the council received advice from the Department of Planning (exhibit 3) that indicated that the draft plan is the subject of internal review and that it is not likely to be made for at least 3-6 months. Accordingly, the council conceded the plan is neither imminent nor certain and did not press the remaining contention. 5It is necessary that I determine the application in accordance with the provisions of s 79C of the Act.

Background and the proposal 6The proposal has been the subject of various amendments in response to issues raised by the council in its preliminary assessment of the application. The Issue E/F plans provide for a 20 storey mixed use commercial and residential development and specifically seek consent to:

• Demolish all existing structures on the site;
• Construct commercial floor space over two storeys including associated service areas;
• Construct a common recreation area for the residential component (level 2);
• Construct 132 residential units comprising 13 x 1 bedroom, 97 x 2 bedroom and 22 x 3 bedroom units; and
• Construct basement and at grade carparking for a total of 278 cars. 7The building would have a maximum height of 70.7m.

The site and its context 8The site is located on the north-western corner of Second Avenue and Sunnyholt Road, Blacktown and comprises Lot 2 in DP 1132726 with a total area of 2446 sq m. It has a frontage of 49.02 m to Second Avenue. 9The lot is affected by a right-of-carriageway of variable width that provides vehicular access across the site from Second Avenue to the adjoining Lot 1 in DP1132726. 10A single storey commercial building previously used as a drive-through liquor outlet is located in the north-western portion of the site. Its parking is to the east and south of the building with the drive-through area running in an anti-clockwise pattern around the building. 11Development to the immediate north of the site on Lot 1 is a McDonalds food premises and to the west a single storey commercial building. Part of the McDonalds carpark extends along the eastern boundary of the site between the right-of-way and Sunnyholt Road with the effect that the site does not have an actual frontage to Sunnyholt Road. 12Car showrooms are located on the southern side of Second Avenue opposite the site and development on the eastern side of Sunnyhold Road, is residential separated from the roadway by vacant land that retains acoustic walls. Blacktown Railway Station and bus interchange is located approximately 400 m south-west of the site. The majority of development in the vicinity of the site comprises low-rise buildings on sites with large at-grade carparking.

The planning controls 13The site is zoned Special Business 3(b) under Blacktown Local Environmental Plan 1988 and the proposed development is permissible with consent on the land. The objectives of the zone are: (a) to ensure that identified centres are encouraged to grow to a level commensurate with the preferred hierarchy of centres for the City of Blacktown by providing sufficient land to cater for required commercial expansion and ancillary development, (b) to support general retail development of land within Zone No 3 (a) in identified centres by providing land adjoining the centres for the purposes of bulky goods retail establishments, (c) to support general retail and commercial development of land within Zone No 3 (a) in identified centres by providing land for additional commercial office development in proximity to those centres, and (d) to support general retail and commercial development of land within Zone No 3 (a) in identified centres by providing land for uses which service the needs of activities carried on in those centres. 14The council resolved to submit a planning proposal in relation to draft BCBDLEP 31 August 2011 and received gateway approval on 2 November 2011 to allow exhibition of the draft plan. The plan applies to the site. The application was lodged with the council on that day. The council exhibited the draft plan from 30 November 2011 to 27 January 2012 and received 28 submissions. As a result of those submissions, the council engaged consultants to undertake a peer review of the urban design/architectural and economic aspects of the planning proposal. Following further consideration of that review, the council made changes to proposed development standards including height controls. 15Under the provisions of draft BCBDLEP, the site would be within Zone B4 Mixed Use. Clause 4.3 would establish a maximum building height of 21 storeys or 64 m with a minimum of 2 storeys of retail or business premises floor space if the plan was made in accordance with the final draft forwarded to the Department of Planning by the council. That final draft was forwarded to the Department on 27 August 2012 requesting that the plan be made. 16SEPPSRD applies to the application and its aims are set out in clause 3 as follows: (a) to identify development that is State significant development, (b) to identify development that is State significant infrastructure and critical State significant infrastructure, (c) to confer functions on joint regional planning panels to determine development applications. 17In accordance with Clause 7, SEPPSRD prevails over the LEP in the event of any inconsistency.

The evidence 18The hearing commenced onsite with a view of the locality undertaken in the presence of the parties and their experts. No objectors were present. 19A Statement of Evidence prepared by Mr P Cantrill for the applicant was tendered as part of Exhibit 1. The council adopted the views in that document. 20It is apparent that the masterplanning that was undertaken by the council in relation to the preparation of draft BCBDLEP has been an extensive exercise and the subject of considerable review. A document, Masterplan Blacktown City Centre Stage 1 Blacktown CBD (the masterplan) was released by the council in 2011. Its purposes is described as being the council's strategic integrated land use plan to manage growth and development within the Blacktown City Centre to 2036 forming part of a suite of land use planning documents consistent with the directions outlined in the council's corporate vision document and the State Government's Metropolitan Plan for Sydney 2036 and North West Subregional Strategy. The masterplan applies to the CBD area and identifies a number of sub-precincts, which would be subject to different zoning and planning controls. The site is within the northern sub-precinct. 21Section 5.2.6 of the masterplan deals with Building Heights and, for the northern precinct states: The aim is to promote a built form with mixed uses on the edge of the Sub-precinct along Third Avenue, and commercial uses on the southern side of the Sub-precinct. The heights have been rationalised with taller buildings to the south and adjacent to the Railway Line to create a consolidated and viable commercial/retail district. Lower buildings frame the edges of the Sub-precinct and integrate with mixed employment and residential land uses north of Third Avenue. Mixed use development should incorporate a minimum of 2 storeys for retail and commercial development, with a podium for taller residential buildings above. The corner site at the intersection of Third Avenue and Sunnyholt Road should be designed to provide a sense of arrival into the CBD with greater building heights. 22The site forms part of that corner site identified in the final paragraph above, with the McDonalds site forming the remainder of the site subject to the greater building height. 23The evidence shows that the council has reviewed the issue of building height particularly on a number of occasions (Exhibit 1). The latest version of the draft plan provides for a height of 64m and 21 storeys for mixed-use development. This height zone is confined to only the site and its immediate neighbour to the north (McDonalds site) in recognition of the gateway function served by the land when entering the CBD from the north. 24Mr Cantrill says the difference between the masterplan and the proposal is that the wall height exceeds the control by approximately 3 metres and the setback area is a further 4 metres beyond this with the building having one storey less than the proposed control. He says the height of the proposal provides a difference of 11 m to the surrounding adjacent height zone. The masterplan proposes a lesser difference of 8 m and that this greater difference reinforces the differentiation of the site from its surroundings as intended in the masterplan and for that reason, the height of the proposal would more likely meet the reason given from the varying height zones than the proposed height shown in the masterplan. He makes reference to aerial representations of the proposed building heights and says that the height of the corner site appears only marginally higher than the surrounding buildings and this difference is difficult to perceive. He concludes that the difference between the proposed height shown in the masterplan and of the proposal is marginal; generally would not be perceived; is restricted to only this site and its immediate neighbour; remains between the other proposed height zones; and meets the reasons given for the height zones so will not affect the orderly development of land on this site or surrounding sites and assists in creating a distinct address as indicated in the reasons given for the height zone in the masterplan. 25My Seymour, for the council, advises that, apart from the building height, the proposal is fully compliant with the existing and proposed planning controls for the site and is not antipathetic to the aims of the Special Business 3(b) zone under the LEP or the proposed B4 Mixed Use Zone. 26The original contentions in the case have, through action of the parties, additional work by experts and in the conciliation conference held in September, all been resolved other than the issue of height and the weight to be given to draft BCBDLEP. Those original contentions related to streetscape, dwelling mix, internal amenity and building design, provision of commercial space, access, traffic, waste management, site contamination and height. The amended plans reflect those actions and the changes made are now acceptable to the council.

Conclusion and findings 27As a result of the advice provided to the Court in exhibit 3, the council has conceded that draft BCBDLEP is neither imminent nor certain. Accordingly, it is necessary to determine the extent of weight to be applied to the draft plan. Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 provides guidance in this regard and states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 28It is apparent from the evidence provided that the development proposed under the application will achieve the council's planning objectives. There are no adverse impacts identified from the additional height. The Court was advised that one of the objectors raised the issue of overshadowing. The evidence is that the objector's property would not be affected by overshadowing due to the additional height proposed. 29I am satisfied that the proposal will be consistent with the broad objectives the draft planning instrument seeks to achieve, that is, a development that acts as a gateway at the northern entry to the Blacktown CBD. I accept the uncontradicted evidence of Mr Cantrill that the additional height will not be perceptible and will create the sense of arrival into the CBD anticipated in s 5.2.6 of the masterplan. 30Having regard to those matters to be considered under s 79C of the EP&AAct I am satisfied the development warrants consent. The parties have agreed on conditions that are appropriate to ensure the development meets all relevant statutory and operational concerns. 31The Orders of the Court are: (1)The appeal is upheld. (2)Development Application JRPP-11-2391 for the erection of a 20 storey mixed use commercial and residential development at Nos 1-7 Second Avenue Blacktown is approved subject to the conditions contained in Annexure 'A'. (3)The exhibits, other than exhibits A, B and 4 may be returned.

Sue Morris 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: 24 October 2012