AC and C Investments Pty Ltd v City of Canada Bay Council

[2020] NSWLEC 1542

Land and Environment Court

New South Wales

Medium Neutral Citation:

AC & C Investments Pty Ltd v City of Canada Bay Council [2020] NSWLEC 1542

Hearing dates:

Conciliation conference on 30 October 2020

Date of orders:

09 November 2020

Decision date:

09 November 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A.

(2) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, on the ordinary basis and as agreed or assessed.

(3) The appeal is upheld.

(4) Development application 2020/0032 proposing the demolition of existing structures and the erection of a boarding house comprising a basement and 3 levels of accommodation above is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference boarding house – agreement between the parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Department of Urban Affairs and Planning, Managing Land Contamination, Planning Guidelines SEPP 55—Remediation of Land, (August 1998)

New South Wales Department of Planning, Contaminated Land Planning Guidelines (Draft 2018)

Category:

Principal judgment

Parties:

AC & C Investments Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/140013

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 being an appeal against the deemed refusal of a development application 2020/0032 seeking approval for the demolition of existing structures and the erection of a boarding house comprising a basement and 3 levels of accommodation above (the Proposed Development) at 209 Queen Street Concord West NSW legally described as Lot 24 Section 3 DP6949 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 30 October 2020. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved granting leave to amend the development application and rely on amended plans, costs, the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the following jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied.

6. A BASIX Certificate issued 10 September 2020 has been filed with the Court on 30 October 2020 as required by cl 3 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

7. Clause 7 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) requires the consideration of whether land is contaminated prior to the issue of a development approval. The parties advise the Court in the written Jurisdictional Statement filed on 30 October 2020 as follows:

“(a) the Site is not within an investigation area;

(b) development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the land;

(c) historic zoning controls for the land did not make lawful the carrying out of activities nominated in Table 1.”

8. In relation to the reference in cl 7 of SEPP 55 to “Table 1 of the contaminated land planning guideline” I have also referred to the following documents and am satisfied that the assessment of the parties is accurate:

1. The 1998 “Managing Land Contamination Planning Guidelines SEPP 55—Remediation of Land” where Table 1 appears at page 12; and

2. The draft “Contaminated Land Planning Guidelines 2018” where Table 1 is contained in Appendix 1 at page 37. Here, 2 additional potentially contaminated land uses (firefighting training and use of firefighting foams, and fuel storage) are included.

9. I have also referred to the Statement of Environmental Effects prepared by Morphology Design Associates Pty Ltd and filed on 11 May 2020 and note that on pages 16 and 17 there is detailed consideration of SEPP 55. I accept the conclusion on page 17 that:

“Pursuant to Clause 7 of SEPP 55, the proposed residential use of the site is appropriate in this circumstance.”

10. The Proposed Development includes excavation within 2m of an electricity distribution pole and consistent with cl 45 of the State Environmental Planning Policy (Infrastructure) 2007, written notice of the development was given to Ausgrid and no response was received. I accept that for the purpose of cl 45(2), the Respondent Council has provided written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks and that no response was received.

11. The Proposed Development, being zoned R3 Mixed Uses, is permissible with consent under the Canada Bay Local Environmental Plan 2013 (CBLEP 2013) and cl 28 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Clause 30A of the SEPP ARH provides that a consent authority must not grant consent to a boarding house unless it has taken into consideration whether the design of the Proposed Development is compatible with the character of the local area. I have considered the amended development application which includes modifications to the front module of the Proposed Development and the resulting reduction in height, bulk and scale. The parties agree that the Proposed Development is compatible with the local area and I am satisfied that cl 30A of the SEPP ARH has been appropriately complied with.

12. There are other provisions of the CBLEP 2013 which the parties explained provide jurisdictional prerequisites which are satisfied which include development standards such as height and floor space ratio (FSR), heritage, acid sulfate soils and essential services. I will deal with each of these in turn.

13. Clause 4.3 of the CBLEP 2013 provides for a maximum building height of 8.5m. I note and accept that the Proposed Development complies with the maximum height development standard.

14. The Proposed Development also complies with the FSR set by the CBLEP 2013 at cl 4.4 of 0.5:1 with the additional FSR bonus of 0.5:1 applicable pursuant to the SEPP ARH resulting in a total maximum FSR of 1:1 being permitted on the Site for the Proposed Development. The FSR of the amended proposal is 0.91:1.

15. The parties advise and I accept that the Site does not contain a heritage item, is not within a heritage conservation are and is not within immediate proximity to an item or conservation area.

16. In relation to acid sulfate soils: cl 6.1 CBLEP 2013 provides:

6.1   Acid sulfate soils

(1)  The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

(2)  Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

Class of land	Works
5	Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

(3)  Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.

17. The parties rely on the conclusions contained at page 8 of the Geotechnical Investigation Report prepared by Apex Projects Pty Ltd dated 22 January 2020 in the Class 1 Application filed 11 May 2020, which I accept, and it provides as follows:

“The Acid Sulphate Soils Map produced by the NSW Department of Planning and Environment, via interactive online mapping, indicates that the site lies within an area defined as “Class 5”. In accordance with Clause 6.1 of Canada Bay City Council’s LEP (reference 8), a preliminary assessment of acid sulphate soil and potentially a management plan, is required for “…works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land”.

Firstly, the surface elevation is greater than 5m AHD (at a minimum of 12m AHD). Secondly, the maximum depth of proposed excavation is expected to be no deeper than 9m AHD. In this regard, there is no need for an acid sulphate soil assessment or management plan.”

18. For the reason set out above I find that cl 6.1 of the CBLEP 2013 is complied with.

19. Clause 6.5 of the CBLEP 2013 requires the consent authority to be satisfied of access to various essential services. The parties are satisfied that essential services are available or can be made available and I have referred to the proposed agreed draft conditions of consent and I too am satisfied as required by cl 6.5 of the CBLEP 2013.

20. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act and I have set out my reasons above by adopting the reasons given by the parties and adding my own additional reasons.

21. 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.

22. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A.

2. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, on the ordinary basis and as agreed or assessed.

3. The appeal is upheld.

4. Development application 2020/0032 proposing the demolition of existing structures and the erection of a boarding house comprising a basement and 3 levels of accommodation above is approved subject to the conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (475146, pdf)

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Decision last updated: 09 November 2020