A and a Development Pty Ltd v Cumberland Council

[2022] NSWLEC 1071

Land and Environment Court

New South Wales

Medium Neutral Citation:

A & A Development Pty Ltd v Cumberland Council [2022] NSWLEC 1071

Hearing dates:

Conciliation Conference on 7 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The written requests pursuant to clause 4.6 of the Auburn Local Environmental Plan 2010 to vary the development standards in clause 4.3 Height of Buildings and clause 4.4 Floor Space Ratio prepared by Think Planners dated February 2022 are upheld.

(2) The appeal is upheld.

(3) Consent is granted to Development Application No 2020/0336 for demolition of existing buildings, the consolidation of two allotments and the construction of a shop top housing development comprising 1 retail premises and 79 residential units at the property comprised in folios Lot 17 and Lot 18 Section 4 in Deposited Plan 982836, otherwise known as 22-24 Park Road, Auburn subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of shop top housing – amended plans – agreement between the parties – orders.

Legislation Cited:

Auburn Local Environmental Plan 2010, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2.

State Environmental Planning Policy (Infrastructure) 2007, cl 45(2)

Cumberland Local Environmental Plan 2021, cl 1.8A

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7,

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 3(2), 20-27

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, cll 28, 30(1)

Category:

Principal judgment

Parties:

A&A Development Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Centurion Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s):

2021/168725

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the actual refusal of Development Application No. DA/2020/0336 by Cumberland Council (the Respondent). The development application, as amended, seeks consent for the demolition of existing buildings, the consolidation of two allotments and the construction of shop top housing comprising one retail premise and 79 residential units. The development is proposed at 22-24 Park Road, Auburn, Lots 17 and 18 in Section 4 of Deposited Plan 982836.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 29 September 2021. The parties failed to reach agreement and the conciliation was subsequently terminated.

3. The Applicant filed a Notice of Motion, on 25 November 2021, to rely on amended plans. The motion was granted on 26 November 2021. Prior to the hearing, the parties continued to conference based on the amended application.

4. Upon commencing the hearing, the parties advised the Court that an agreement under s 34(3) of the LEC Act was capable of being reached. On that basis, the matter was further listed for a s 34(1) conciliation conference on 7 February 2022. The decision agreed upon by the parties is that the appeal is upheld, subject to the conditions of consent annexed to this judgment.

5. I presided over the conciliation conference. 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 have formed this state of satisfaction for the following reasons:

1. By reference to the development application form filed, Owner’s consent has been given to the Applicant for lodgement of the Development Application.

2. An amended BASIX certificate has been filed to reflect the amended architectural plans in satisfaction of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

3. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. The land is not known to the Council to be contaminated, is not within a nominated investigation area or been used for a purpose referred to in Table 1 of the Contaminated Planning. Based on the above, subcll 7(2) and (3) have no application. I am satisfied that the risk of contamination is low and that the site is suitable or can be made suitable for the intended use.

4. The development application meets the criteria for State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) to apply. No design review panel is in existence requiring consultation under cl 28. The application complies with minimum standards under cl 30(1) for car parking, apartment size and ceiling heights. I am satisfied that the amended development has given adequate regard to the Schedule 1 Design Quality Principles and Apartment Design Guide design criteria objectives. The DA, as amended, is accompanied by a revised Verification Statement dated 7 February 2022 which provides an assessment of the proposal against the Design Quality principles as set out in SEPP 65, Part 1.

5. In accordance with cl 45(2) of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP), the Council gave written notice of the development to Ausgrid and invited comments. Ausgrid responded raising no objection to the development. Ausgrid’s response has been considered as required by cl 45(2) of ISEPP.

6. Pursuant to cl 3(2) of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP), the Site in not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area. Nor is it shown as containing a heritage item.

7. Clause 20(a) of SREP requires matters referred to in Part 3 Division 2 of the SREP be taken into consideration by the consent authority before granting development consent. In respect of the Division 2 matters I am satisfied as follows:

• clause 21: The development will have a negligible and acceptable impact on biodiversity, ecology and environmental protection. Subclauses (a)-(i) raise no matters that warrant refusal of the development.

• clause 22: The development will have no impact upon public access to, and use of, the foreshore and waterway.

• clause 23: The development has no implications for a working harbour.

• clause 24: The development has no implications for use of the waterways or foreshore.

• clause 25: The development has no impact upon the scenic quality of the waterways and foreshore.

• clause 26: The development has no impact upon views.   

• clauses 27 (boat storage facilities), 27A (floating boat platforms) and 27B (mooring pens) have no relevance to the development.

8. The Auburn Local Environmental Plan 2010 (LEP 2010) applies to the site. Pursuant to LEP 2010 the site is zoned B4 Mixed Use Development. The proposed development is for the purpose of retail premises and shop top housing both of which are permitted uses in the zone. Demolition is permissible pursuant to cl 2.7 of LEP 2010. In determining the development application, I have had regard to the objectives of the zone: cl 2.3(2) of LEP 2010.

9. Clause 4.3 of LEP 2010 provides for a maximum building height of 38m for the subject site. The amended development has a maximum height of 38.8m at the rear parapet of the building. The applicant submitted a clause 4.6 written request which I am satisfied demonstrates (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. Further, I am satisfied that the development is in the public interest because it is consistent with the objectives of the building height standard and the objectives of the B4 zone. The requirements of cl 4.6(4) of LEP 2010 are satisfied.

10. Clause 4.4 of LEP 2010 provides for a maximum building floor space ratio (FSR) of 5:1 for the subject site. The amended development has a maximum FSR of 5.05:1. The applicant submitted a clause 4.6 written request which I am satisfied demonstrates (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. Further, I am satisfied that the development is in the public interest because it is consistent with the objectives of the FSR development standard and the objectives of the B4 zone. The requirements of cl 4.6(4) of LEP 2010 are satisfied.

11. The site is marked as Class 5 land on the Acid Sulfate Soils Map in LEP 2010, but is not within 500m of any class 1, 2, 3 or 4 land. On that basis, development consent is not required under cl 6.1 of LEP 2010.

12. Consent for proposed earthworks is required under cl 6.2 of LEP 2010. In respect of cl 6.2(3) considerations, I am satisfied that:

• Impacts on drainage patterns and soil stability will be satisfactory;

• The earthworks are related to and necessary for the future use / redevelopment of the land;

• The quality of soil to be excavated of is no more than necessary;

• Subject to adherence to conditions requiring safe means of excavation, the earthworks will have a negligible and satisfactory impact upon the existing and likely amenity of adjoining properties;

• The annexed conditions require the disposal of excavated material at an appropriate facility;

• The likelihood of disturbing relics is remote and not of determinative weight; and

• The site is not proximate to and will have negligible to no impact upon a waterway, drinking water catchment or environmentally sensitive area.

13. Clause 6.5 of LEP 2010 requires the consent authority to be satisfied of access to various essential services for the proposed development. I am satisfied that the listed essential services are available or can be made available.

14. The Cumberland Local Environmental Plan 2021 came into force on 5 November 2021. Pursuant to cl 1.8A, the application is to be determined as if the plan had not commenced.

15. The application was notified in accordance with the relevant development control plan, and I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

6. 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)).

7. 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.

8. The Court notes that:

1. Cumberland Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA/2020/0336.

2. That the amended development application is uploaded onto the NSW planning portal.

3. That the applicant filed the amended development application with the Court on 25 November 2021.

9. The Court orders that:

1. The written requests pursuant to clause 4.6 of the Auburn Local Environmental Plan 2010 to vary the development standards in clause 4.3 Height of Buildings and clause 4.4 Floor Space Ratio prepared by Think Planners dated February 2022 are upheld.

2. The appeal is upheld.

3. Consent is granted to Development Application No 2020/0336 for demolition of existing buildings, the consolidation of two allotments and the construction of a shop top housing development comprising 1 retail premises and 79 residential units at the property comprised in folios Lot 17 and Lot 18 Section 4 in Deposited Plan 982836, otherwise known as 22-24 Park Road, Auburn subject to conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (369571, pdf)

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Decision last updated: 11 February 2022