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