Universal Property Group Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2021-09-17

Judgment

COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of DA-19-01518 by the Respondent, Blacktown City Council. The development application was lodged on 25 October 2019. As amended, it seeks consent for Torrens title subdivision to create six lots, tree removal, construction of internal roads and civil works and the construction of a residential flat building (RFB) comprising basement parking, landscaping and associated drainage work on proposed Lot 1. The development is proposed at 182 Guntawong Road, Rouse Hill (Lot 47 DP 30186).
The development application has been amended with leave of the Court, both on 8 February and 22 June 2021. The joint conferencing of the experts, and therefore the evidence in the proceedings address the development application as amended (the development application). The Respondent has confirmed that the development application is uploaded to the NSW Planning Portal, meeting the requirements of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

The Site

The site has an approximate area of 2.025Ha. The north-western part of the site contains a dam (proposed to be decommissioned as part of the development application) with other site improvements including a detached single dwelling, garage and associated outbuildings.
A 60.960m wide electricity transmission easement crosses the site. The site contains an electricity stanchion and high-level power cables.
The site is devoid of any significant vegetation being predominately grassed.
The site is located approximately 2.7km from Riverstone Railway station and town centre and 12km from the M7 Westlink Motorway. The Tallawong Metro station is approximately 2km to the south of the site.
The area is undergoing significant change reflective of the Growth Centres SEPP. The subject site is included in the Riverstone East Precinct.

Planning Controls

In accordance with the requirements of cl 49(1) of the EP&A Regulation, consent has been provided by the owners of the land the subject of the Development Application.
Clause 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires a consent authority to consider: firstly whether the land is contaminated; secondly, if the land is contaminated, whether the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and finally to be satisfied that if remediation is required it will be carried out prior to the use commencing. The Applicant has prepared a site investigation report which concludes that the subject site is suitable for the proposed residential use. (Exhibit A). Accordingly, I accept that cl 7 of SEPP 55 has been addressed.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the development. I am satisfied that the design quality principles (Sch 1 of SEPP 65) have been taken into consideration, along with the Apartment Design Guide in the design of the development. The Applicant has filed a Design Verification Statement in accordance with the requirements of cll 50(1AB) and 50(1A) of the EP&A Regulation. I am satisfied that the requirements of SEPP 65 have been met.
The proposed development is development that is within or immediately adjacent to an easement for electricity purposes as defined by State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) at cl 45(1). As required by SEPP Infrastructure both the original development application and the development application as amended were referred to TransGrid. The response from TransGrid to the original development included the following: "a) the proposed work is not acceptable due to proposed ROAD 1 infringing on the minimum safety buffer clearance requirement of 30m from structure 57 [the stanchion located on the subject site]." (Exhibit 2)
Following discussions between the Applicant and TransGrid, the development application as amended was referred to TransGrid by Blacktown Council. TransGrid's letter of 13 July 2021 provides concurrence to the development application, with a 20m offset to from the electricity stanchion [structure 57] to proposed Road 1, subject to conditions. The relevant conditions from TransGrid are included in the annexed consent conditions. I find that cl 45(2) of SEPP Infrastructure is satisfied.
The site is located in the Riverstone East Precinct under the Growth Centres SEPP and is subject to the controls in Appendix 12: Blacktown Growth Centres Precinct Plan (Precinct Plan). Pursuant to cl 2.6 of the Precinct Plan subdivision is permissible with consent. Under the Growth Centres SEPP, the site is zoned part R2 Low Density Residential (light pink) and part R3 Medium Density Residential (dark pink) as detailed in the following extract of the zoning map, the subject site is identified with the dashed line:
The proposed residential flat building is located within the portion of the site zoned R3 Medium Density Residential. The remainder of the subdivided lots are located within the portion of the site zoned R2 Low Density Residential. Development for the purpose of a residential flat building is permissible in the R3 Medium Density Zone.
In determining the development application, I have had regard to the zone objectives, which are extracted below: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow residents to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours. • To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment. Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.
Clause 4.1AB of the Precinct Plan contains the development standard for minimum lot sizes. The development application complies with this standard. (Exhibit C)
The development application relies on a variation to the height of buildings standard as it applies to the R3 Medium Density zone portion of the subject site. The applicable maximum height standard is 12m. The development application has a maximum height of 14.07m (Exhibit L). The Applicant has prepared and filed a request to vary the development standard pursuant to cl 4.6 of the Precinct Plan (the written request).
The Blacktown City Council Growth Centres Precincts Development Control Plan 2010 (DCP 2010) applies to the site: Figure 1.1 of DCP 2010. The precinct specific controls for the Riverstone East Precinct are contained in schedule 8 of DCP 2010.
The following sections of Sch 8 of the DCP 2010 are relevant to the issues in dispute:

"Part 4: General Precinct controls
Part 4.2: Street Network and Design Objectives a. To create specific street types that minimise land area requirements whilst enhancing the landscape verge Controls 1. The street network and road hierarchy is to be provided generally in accordance with Figure 4-2. 2. Precinct specific street types are to be designed in accordance with Table 4-2 and Figure 4-4 and Figure 4-5. 3. Road cross sections for sub-arterial, collector local roads and rear lanes can be found in the BCC Growth Centre Precincts DCP. Part 3.4 Movement Networks 3.4.1.1: Objectives a. To establish a hierarchy of interconnected streets that give safe, convenient and clear access within and beyond the Precinct; b. To assist is managing the environmental impacts of urban development including soil salinity and stormwater; c. To facilitate energy efficient lot and building orientation; and d. To contribute to the creation of an interesting and attractive streetscape. 3.4.1.2: Controls … 4. Roads in the relevant Precinct are to be constructed in accordance with the hierarchy shown on the Precinct road hierarchy figure in the relevant Precinct schedule. 5.The locations and alignments of all roads are to be generally in accordance with the locations shown on the Precinct road hierarchy figure in the relevant Precinct schedule. 6. Where any variation to the residential street network indicated at the Precinct road hierarchy figure is proposed the alternative street network is to be designed to: - create a permeable network that is based on a modified grid system, - encourage walking and cycling and minimise travel distances, - Maximise connectivity between residential areas and community facilities, open space and centres, - take account of topography and site drainage, and accommodate significant vegetation, - optimise solar access opportunities for dwellings, - provide frontage to and maximise surveillance of open space and drainage lands, - provide views and vistas to landscape features and visual connections to nodal points and centres, - maximise the effectiveness of water sensitive urban design measures, and - minimise the use of cul-de-sacs. However, if required, they are to be designed in accordance with council's Engineering Guidelines. … 8. For changes to the road system that Council considers minor, council will write to the affected property owners and consider any comments of those persons before determining the application. Applicants wishing to amend the proposed road pattern are advised to liaise with affected adjoining owners prior to submission of the Development Application. By obtaining the prior agreement of adjoining owners to proposed road pattern changes, the time required by council to determine the application may be reduced. …"

The relevant precinct road hierarchy for Riverstone East Precinct indicates Guntawong Road is proposed to be a 'collector road' with the remaining roads, including proposed road 1, classed as local roads.
The ILP is provided in Sch 8 of the DCP 2010 at Figure 3.1 as follows. The subject site within the ILP is identified in the extract.

Public Submissions

The development application was notified in its original form in January 2020 and in its amended form in July 2020. In determining the development application, the Court is to take into consideration any submissions made. The submissions received by Blacktown City Council since the lodgement of the development application were tendered in the proceedings as part of the Respondent's evidence. I have read and considered those submissions.
The issues raised by submissions can be summarised as: 1. That the subdivision plan in the development application shows the alignment of Road 1 to be 20m from the electricity stanchion, which is contrary to the ILP. The proposed re-positioning of Road 1 will result in it being located further into 184 Guntawong Road, Riverstone (the adjoining property to the subject site) thereby reducing development potential by relocating the burden of providing proposed Road 1. 2. The aim of the ILP was for adjoining developers to share the burden of road construction. However, the development application results in 184 Guntawong bearing the overwhelming burden of road construction and experiencing a concurrent loss of development yield. 3. That if the development application is approved a condition should be imposed that requires the following: * At least 50% of the cost of design and construction of Road 1 between proposed Roads 3 and 4, proposed to be constructed on 184 Guntawong Road, be at the expense of the Applicant and secured by a bond or guarantee as part of any consent; * That the removal of any retaining walls to allow future full road construction should be at the expense of the Applicant and secured by bond or guarantee as part of any consent; and * That any boundary fencing must provide adequate privacy and security to 184 Guntawong Road, noting that the property is used for livestock. 1. A request that Road 1 be deleted from the ILP on account of the lack of need for the road, given the ILP provides for existing roads some 120m away in each direction. Further, the road design will promote 'rat-running' through residential streets and the curve in the road is potentially dangerous given the limited sightlines. 2. The development application contains stormwater design plans that will direct stormwater onto the adjoining property, 184 Guntawong Road. Such an impact is strongly objected to. 3. The development application proposes the construction of retaining walls on the common boundary with 184 Guntawong Road to accommodate level changes resulting from the construction of the subdivision. This is strongly is objected to. No consent has been given from the owners of 184 Guntawong Road to batter, drain or construct works on their land. 4. That the construction process to achieve both the subdivision and the construction of the residential flat building will affect the adjoining properties quiet enjoyment of their land. 5. That the requested variation to the building height standard sought for the residential flat should not be granted as the written request fails to satisfy the criteria at cl 4.6 of the Precinct Plan, the satisfaction of which is a precondition to the grant of consent.
During the hearing provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. In their oral submissions a representative of the adjoining resident raised the following further objections: 1. That the Applicant had not made sufficient effort to consult with TransGrid and to negotiate a reduced setback to the stanchion. This has had the effect of imposing a further infrastructure burden on the adjoining property. 2. No consent has been provided by the owner of 184 Guntawong Road to relocate part of proposed Road 1 onto their land. 3. The proposed retaining walls on the common boundary will result in a significant detrimental visual impact given their height (1.2m) and the addition of a dividing fence (1.8m), resulting in an overall height of some 3m in parts. 4. The applicant has not made a reasonable attempt to batter the fill or maintain the existing levels of the adjoining property. 5. Any drainage works proposed in the road reserve should be deleted and should not be a burden on 184 Guntawong Road. 6. That, if approved, the development application will result in a detrimental economic impact on 184 Guntawong Road. Such an impact is unreasonable.

Experts

The Court was assisted by the following experts whose joint reports were tendered in the proceedings:

Town planning and Urban Design: Jonothan Wood (Applicant), Alison Davidson (Respondent) and Matthew Sales (Respondent). Joint reports: Exhibits 3, 4, 5.
Drainage: Glenn Jameson (Applicant), Laith Almoil (Respondent) Joint Reports: Exhibits 6, 7, 8.
Engineering: Glenn Jameson (Applicant), David Yee (Respondent) Joint Reports: Exhibits 9, 10, 11.

Should the Applicants request to vary the height standard be upheld?

The residential flat building component of the development application exceeds the maximum height control. The Applicant therefore seeks a variation to the maximum height control utilising the provisions of cl 4.6 of the Precinct Plan.
Clause 4.6 of the Precinct Plan contains a precondition to consent at both subcll (3) and (4) as follows: "(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained."
It is clear from a reading of cl 4.6 of the Precinct Plan that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the maximum height standard by demonstrating that the breaches of the development standard are justified.
In Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7, Preston CJ outlines that Commissioners in exercising the functions of the consent authority on appeal have power to grant consent to developments that contravene a development standard (cl 4.6(2) of the Precinct Plan). However, the consent authority cannot grant such a development consent unless they: 1. have considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3) of the Precinct Plan); 2. are satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3), reproduced at (1) (cl 4.6(4)(a)(i) of the Precinct Plan); 3. are satisfied that the proposed development will be in the public interest firstly because it is consistent with the objectives of the particular standard and secondly because it is consistent with the objectives of the zone (cl 4.6(4)(a)(ii) of the Precinct Plan); and 4. are satisfied that the concurrence of the Planning Secretary has been obtained.
I have applied these tests to the current application in the following.

Is compliance with the maximum height development standard unreasonable or unnecessary in the circumstances of the case?

The Applicant relies on a written request to vary the maximum height development standard prepared by Think Planners Pty Ltd dated 17 September (the written request). The written request and the architectural plans (DA-024 Rev H) indicate the extent of the proposed breach to the height control. The planning experts agree that these documents are accurate in nominating the extent of the breach of the standard. (Exhibit 3) The variation is described in the written request as follows: "Block A: - Lift over-run: 1.5m or 16.3% - Timber Pergola: 1m or 8.3% - Clerestory windows: 820mm or 6.8% however these are considered to be architectural roof features but for caution are included. Block B - Lift over-run: 2.07m or 17.25% - Timber Pergola: 1.4m or 11.6% - Roof element: 0.15 or 1.25% - Clerestory windows: 0.65m or 5.41% however these are considered to be architectural roof features but for caution are included." (Exhibit K)
The planning experts note their agreement in the joint report that the variation to the height standard is, in their view, acceptable and that the written request is well founded. (Exhibit 4)
The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe).
Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by the Council's actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).
In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action ).
The written request relies on Wehbe test 1. Namely in seeking to vary the maximum height standard the written request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding the non‐compliance of the development application.
The objectives of the maximum height standard are: "(a) To establish the maximum height of buildings (b) to minimise visual impact and protect the amenity of adjoining development and land in terms of solar access to buildings and open space, (c) to facilitate higher density development in and around commercial centres and major transport routes."
The written request argues that the objectives of the height standard are achieved by the proposed development in the following ways: "The proposal, despite the numerical non-compliance identified, remains consistent with the objectives based on the following: - Objective (a) is explanatory in what is sought to be achieved by the numerical standard. - At the outset the variation is minor, to the extent that the non-compliance will be largely imperceptible as viewed from the public domain or surrounding properties - noting the recessed nature of the pergolas and lift over-run elements and the cohesive design response in terms of the 'frame' element whereby the parapet protrudes. - The maximum height of all parts of the building are generally below the height limit, other than the lift over-run, pergola, and the parapet element. The extent of the minor non-compliance could be reduced by the removal of these areas; however, this would be a poorer design outcome with the removal of shade elements to the communal area, access via lift to the rooftop, and the architectural treatment of the frame element. - The proposal is consistent with the intended maximum height limit for the locality, being 4 storeys; - The development is consistent with the intent of the maximum height control and will present a series of buildings that appropriately addresses the surrounding public roads and public spaces and the height departure does not result in adverse visual impacts owing to the recessed nature of those elements that exceed the height limit and the 4 storey built form which is consistent with the intended built form character. In addition the breach of the height standard does not impact on the amenity of adjoining development and land in terms of solar access to buildings and open space. This is demonstrated by the 3d shadow diagrams, (Drawing 19A of the architectural plans) that shows that the extent of overshadowing is caused by the building that sits within the required setbacks and building height standard and that the majority of shadow is cast on the road network. - The additional overshadowing that results from the height non-compliance is limited owing to the lot orientation and the minor extent of the height breach and the sites relationship to the adjoining allotments. - The proposal provides an appropriate building form that is consistent with the desired future character of the locality and is reflective of the objectives for the zone and locality generally. - In relation to the objective (c) the proposal is for a form of high density development permitted in the R3 zone and the site is in proximity to the future Local Centre located at the junction of Guntawong Road and Tallawong Road. The proposal is also in proximity to major transport routes - being Tallawong Road that provides a connection to the Cudgegong Road Railway Station. As outlined above the proposal remains consistent with the underlying objectives of the control and as such compliance is considered unnecessary and unreasonable." (Exhibit K)

Findings

Clause 4.6(3)(a) of the Precinct Plan requires the consent authority to be satisfied that the written request seeks to justify the contravention of the relevant development standard by demonstrating that compliance with that standard is unreasonable or unnecessary in the specific case of the development application. In these proceedings the written request elects to do this by arguing that despite the variation height standard, the development application meets the objectives of the development standard.
After considering the expert evidence, submissions of the parties and reviewing the written request itself, I am satisfied that the written request meets the requirements of cl 4.6(3)(a) of the Precinct Plan. My reasoning follows.
Applying the reasoning of Preston CJ in Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [49], I accept that the first of the objectives of the height standard is explanatory of the central purpose of the height development standard, namely to establish the applicable maximum height.
In relation to objectives (b) and (c) of the standard I am satisfied that the reasoning detailed in the written request, summarised at [41], adequately establishes that the proposed development will firstly minimise visual impact and protect the amenity of adjoining development, and secondly, it will facilitate the development of higher density development proximate to commercial centres and transport routes.
For the preceding reasons I find that the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: cl 4.6(3)(a) of the Precinct Plan is satisfied.

Does the written request establish sufficient environmental planning grounds to justify the contravention of the maximum height standard?

In Initial Action at [24], Preston CJ reinforced that the environmental planning grounds relied on in the written request must be sufficient in two respects. Firstly, the environment planning grounds in the written request must be sufficient "to justify contravening the development standard", noting that the focus of the justification is on the aspect or element of the development contravening the standard, rather than the development as a whole. Secondly, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter": see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].
The written request proffers a number of matters that it describes as environmental planning grounds that justify the contravention of the maximum height development standard. Those grounds can be summarised as follows: 1. That the variation is minor and will be largely imperceptible when viewed from the public domain or surrounding properties. 2. The main form of the proposed residential flat building is proposed to be constructed below the 12m height limit. The elements which breach the height limit (the frame element, the pergola and the lift overrun) could be removed to bring the building into compliance, however this would be a poorer architectural design outcome. 3. The minor departure in the standard will result in a better amenity. The pergola will provide shade to the rooftop communal open space, provision of lift access will provide more convenient and accessible access to the communal open space, and the frame element adds to the streetscape appeal of the development. The written request argues that on these grounds "the minor departure enables a better design outcome, consistent with the following Objects of the Environmental Planning and Assessment Act 1979: (g) to promote good design and amenity of the built environment." (Exhibit K)

Findings

As noted at [47] the environmental planning grounds advanced in the written request must be sufficient in two ways. In reviewing the written request, I find I can be satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. In particular, I am satisfied that the provision of accessible access to the roof top communal open space via a lift (described at [48(3)]) is an environmental planning ground and in this case is sufficient, in my assessment, to justify the variation.
Further, as clarified in Initial Action at [24], the environmental planning grounds focus on the aspect or element of the development that contravenes the standard. I am satisfied that the grounds described at [48(3)], given they are tied to the variation of the maximum height standard, meet this requirement.
I find that the test of cl 4.6(4)(a)(i) of the Precinct Plan is satisfied in regard to the height contravention.

Public Interest

The remaining test under cl 4.6(4)(a)(ii) is whether the proposed development would be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the zone. I accept the interpretation that the word consistent is synonymous with compatible (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 [45]).
I note that my findings at [42]-[46] establish that the development is consistent with the objectives of the height standard, despite the proposed variation. The second part of the test is directed to consistency with the zone objectives. The proposed residential flat building is located on the part of the site zoned R3 Medium Density Residential. The objectives of the zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.
The written request argues that the proposed development is consistent with the zone objectives as follows: "- the proposal contributes to the creation of housing supply that will serve the communities demand for apartments. - the proposal complements and enhances the existing and future local streetscape by virtue of the careful siting of the development, ground floor presentation and the landscape embellishment work within the sites setbacks. - the design concept recognises the key site attributes and provides for an attractive built form that relates to the existing and future context. - the development provides for the delivery of a variety of housing types in a high density residential environment. The development also provides for a high level of residential amenity, provides for additional housing to contribute to housing supply and affordability and reflects the desired future character and dwelling densities of the area." (Exhibit K)
I accept the reasoning advanced in the written request adequately establishes that the proposed development is consistent with the objectives of the R3 Medium Density Residential zone for the reasons advanced in the written request and is therefore in the public interest. Clause 4.6(4)(a)(ii) is satisfied.
Finally, I have considered the matters in cl 4.6(5) of the Precinct Plan and there is nothing that arises, in my view, that would cause me to decline to exercise the power pursuant to s 39(6) of the Land and Environment Court Act 1979 to grant development consent without the formal concurrence of the Secretary. In any event, the Secretary's concurrence can be assumed as a result of the written notice attached to the Planning Circular PS 20-002.
For these reasons, I am satisfied that consent can be granted notwithstanding the contravention of the height development standard, subject to merit assessment.

Public Interest and consideration of submissions

The remaining contention raised by the Respondent is the consideration of the public interest and consideration of submissions as part of the evaluation of the merits of the development application pursuant to s 4.15 of the EPA Act.
In relation to the issues raised in submissions, and summarised at [26] - [27], I note the following: 1. Proposed road 1: * Following amendment, the construction of proposed road 1 does not form part of the works for which consent is sought under this development application. The portion of the subject site in which it is 'identified' in the ILP for proposed Road 1 will be held in Lot 6, the residue lot. (Exhibit C) The result of this is that if, in the future, the advice from TransGrid varies to allow and offset from the stanchion of 10m, then proposed Road 1 can be wholly constructed within the bounds of the subject site. * Further, the conditions of consent in Annexure A include the following: "12.4 Easements/Restrictions 12.4.1 A Restriction as to User over proposed Lot Residual Lot shall be created under Section 88B of the Conveyancing Act 1919 in the following terms: No further development of the lot burdened is to take place unless it is approved by Development Consent. Such approval is likely to require, but not be restricted to, construction of road and drainage works, the provision of lot fill and the payment of Section 7.11 Contributions. NOTE: The final wording of the recital of the Restriction as to User is to be to Council's satisfaction. … 12.17.2.4 A Restriction as to User over the proposed Residual Lot shall be created under section 88B of the Conveyancing Act 1919 in the following terms: The area of land covered by an alignment of Road 1 between Road 3 and 4 contained within the subject site for a road reserve compliant with the current ILP layout shall be preserved for future road dedication. So much of the land as required under this restriction shall be dedicated as public road upon dedication of the adjoining ILP road. Any portion of the affected land not required to effect the provision of the ILP road shall have the restriction lapse upon dedication of Road 1 between Road 3 and 4. NOTE: The final wording of the recital of the Restriction as to User is to be to Council's satisfaction. 12.17.2.5 Any easement(s) or restriction(s) required by this consent must nominate Blacktown City Council as the authority to release vary or modify the easement(s) or restriction(s). The form of easement or restriction created as a result of this consent must be in accordance with the following: (a) Blacktown City Council's standard recitals for Terms of Easements and Restrictions (Current Version). (b) The standard format for easements and restrictions as accepted by the Land Registry Services (LRS)." * The effect of the development consent conditions, and the amendment undertaken to the development application, is to preclude development within land on the subject site nominated in the ILP for proposed Road 1. 1. Consistency of the proposed development application with the ILP * The IPL within the Precinct Plan identified and made allowance for proposed Road 1 to be offset from the existing TransGrid infrastructure. In the case of the subject site, this infrastructure is the stanchion known as Structure 57. At the time of the preparation of the ILP the offset was depicted at 10m, resulting in proposed Road 1 being located within the subject site. * The ILP was prepared as a master plan of the precinct at a scale of 1:10000. The ILP represents high level precinct planning appropriate for a development control plan. * Throughout the assessment of the development application the Applicant has been responsive to the updated offset requirements of TransGrid and has, in my view, demonstrated that at the current requirements of a 20m offset the intersections between proposed Road 1 and Road 3 and 4 respectively can be accommodated. * I accept and adopt the agreement of the engineering experts that: "- the location of proposed Road 1 is the current nominated position of 20m from TransGrid's stanchion is an acceptable outcome - That the overall integrity of the ILP in this location is maintained." (Exhibit 11) * In determining the development application, I am satisfied that the submissions made by the public about proposed Road 1 and the public interest have been adequately considered and addressed by either amendment to the development application or conditions of consent in Annexure A. 1. Drainage: * The amended development application contains all drainage works within the subject site. I note the following agreement of the drainage experts in their joint report: "[Glenn Jameson] … 2. The works associated with a catch drain shown in the property 172 Guntawong Road (sic) have been removed and the catch drain now is shown as being entirely within the subject property. Along the side boundary of Lot 1 the catch drain is to be positioned above the proposed retaining wall associated with the RFB and within Lot 2 it is now shown as a temporary catch drain. … 3. A revised set of engineering plans have been included in Appendix 3. The plans shown how the sketches fit into the overall proposal and have been included as a guide. [David Yee] 4. The amended sketches show the works have been relocated to be wholly within the subject site and therefore will not require the consent of the adjoining land owner to the east. … Areas of agreement 6. The experts agree that, subject to consideration by others in regards to architectural details of the RFB, the engineering elements can be managed by appropriate conditions of consent." * The relevant conditions of consent are at 2.1.1, 6.1.3, 6.10, 9.5, 12.17.1.1 and 12.17.1.2 in Annexure A along with the following additional condition: "2.1.3 This consent only authorises development within Lot 47 DP 30186, 182 Guntawong Road Rouse Hill." * I accept the agreement of the engineering experts and adopt their findings. On the basis of the amended plans and the conditions of consent, I am satisfied that the drainage issues raised in submissions have been adequately addressed and do not warrant the refusal of the development application. 1. Retaining Wall * The amended development application includes the relocation of any boundary retaining wall structures to be wholly within the subject site. The existing boundary fence will be retained. * Further, the visual impact of the retaining structures will be a short-term transitional impact. I am satisfied that they are an acceptable solution as the precinct transitions to the desired future character detailed in the Growth Centres SEPP and the Precinct Plan. * Finally, with the addition of a bond to address the cost of removal of the retaining wall infrastructure which the final road construction occurs, I am satisfied the concerns identified in submissions and the public interest are adequately addressed. * The relevant conditions are in Annexure A at: 2.1.3 8.7, and 9.9.2. 1. Quiet enjoyment * I note that the objector raises concerns about the impact of the construction process and increased residential density on their ability to experience the quiet enjoyment of their land. The Growth Centres SEPP and the Precinct Plan advance a desired future character which is, by design, a different and more dense residential use than is the current character of Guntawong Road, Rouse Hill. * In considering the objectors submissions I need to give weight to the planning instruments and their strategic intent: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]. * In undertaking the evaluation under s 4.15 of the EPA Act, I am satisfied that the concerns raised by the objector do not warrant the refusal of the application. However, it is appropriate for relevant conditions of consent to be imposed to mitigate the impacts. The relevant conditions are: 4.9.1 and 10.1.2 in Annexure A. 1. Conditions * The adjoining resident seeks for the Court to impose a condition of consent requiring the Applicant to contribute 50% of the cost of design and construction of Road 1 between proposed Roads 3 and 4. I accept the agreed submissions of Mr Berveling and Mr Staunton that the condition sought by the objector, seeking a financial contribution from the Applicant to the construction of part of proposed Road 1, is not an appropriate condition to be imposed on this consent at least for the reason that it does not reasonably relate to the works for which consent is sought. * The request for consideration of the cost of the future removal of the proposed retaining wall has been addressed by the imposition of condition 2.5.12 in Annexure A. The required bond will cover the future cost to Blacktown City Council for the removal of the interim retaining walls within the subject site that are located within the future road reserve.
Having given consideration to the submissions and the public interest I find that I am satisfied that the matters raised by the objector do not warrant the further amendment or refusal of the application.
Finally, I am satisfied that Owners consent of any adjoining party is not required as no works are proposed on land outside the subject site.

Orders

The orders of the Court are: 1. The appeal is upheld 2. Development Application DA-19-01518 seeking consent for Torrens title subdivision to create six lots, tree removal, construction of internal roads and civil works, construction of a residential flat building comprising basement parking, landscaping and associated drainage work on proposed lot 1 at 182 Guntawong Road, Rouse Hill (Lot 47 DP 30186) is approved subject to the conditions of consents annexed at "A". 3. The Exhibits are returned with the exception of Exhibit 1, A, C, L.

Amendments 27 October 2021 - Pursuant to UCPR r 36.16, the Court amends the final orders of 20 October 2021 to remove the reference to Exhibit M. 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: 27 October 2021

(2019) 243 LGERA 338

(2004) 138 LGERA 237

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Cases Cited (12)