ACN 646 685 592 Pty Ltd v Northern Beaches Council

[2022] NSWLEC 1447

Land and Environment Court

New South Wales

Medium Neutral Citation:

ACN 646 685 592 Pty Ltd v Northern Beaches Council [2022] NSWLEC 1447

Hearing dates:

Conciliation conference on 27 July 2022

Date of orders:

02 September 2022

Decision date:

02 September 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendment to the development application as agreed or assessed.

(2) The appeal is upheld.

(3) Development application no. DA2021/2153 for the demolition of 2 dwellings and the construction of a residential flat building and consolidation of Lot A and Lot C in DP 403991 at 27a-29 Pine Avenue, Brookvale is determined by the grant of consent, subject to the conditions of consent set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R3 Medium Density Residential zone – agreement between parties – conciliation conference – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Warringah Local Environmental Plan 2011, cll 4.3, 6.1, 6.2

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 19, 28, 30

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

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

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

ACN 646 685 592 Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

2022/14963

Publication restriction:

No

Judgment

1. COMMISSIONER: Two dwelling houses and their associated outbuildings at 27a and 29 Pine Avenue, Brookvale, are proposed for demolition. In their place, a residential flat building comprising fourteen apartments is proposed.

2. The proposed development also seeks consent for site preparation, including tree removal, and the construction of a common basement containing parking for 43 vehicles.

3. To this end, the Applicant in these proceedings lodged development application no. DA2021/2153 with the Northern Beaches Council (the Respondent) on 9 November 2021.

4. The Northern Beaches Local Planning Panel refused the DA, on behalf of the Respondent, on 18 May 2022. The Applicant now appeals the refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), in Class 1 proceedings.

5. The matter was originally listed before me for hearing on 26-27 July 2022, however at the commencement of the second day of the hearing, the parties advised the Court of amendments to the plans and other documents that resolved the contentions in dispute.

6. The matter was re-allocated to me for conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 July 2022, and at which I presided.

7. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application. I granted the parties an adjournment to permit the preparation of amended plans and other documents.

8. The decision of the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

9. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 8 August 2022.

10. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

11. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [28], and as follows:

12. The site is located within the R3 Medium Density Residential zone under the Warringah Local Environmental Plan 2011 (WLEP) in which residential flat buildings are permitted with consent, where consistent with the following relevant objectives for development in the R3 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 ensure that medium density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

•  To ensure that medium density residential environments are of a high visual quality in their presentation to public streets and spaces.

13. The proposed development complies with the height of building standard at cl 4.3 of the WLEP.

14. The site is not identified as affected by any class of Acid Sulfate Soils by the relevant map at cl 6.1(2) of the WLEP, is not in proximity to such land, and development in relation to which is unlikely to lower the watertable.

15. On the basis of the Stormwater Management Plan prepared by Taylor Consulting dated 8 June 2022, the Geotechnical Investigation Report prepared by Alliance Geotechnical & Environmental Solutions dated 22 October 2021, and the Addendum Letter for Geotechnical Investigation Report No.: 13626-GR-1-1 authored by the same dated 3 August 2022, and the Landscape Plans prepared by Plot Design Group dated 2 August 2022, I have considered earthworks for which development consent is required, and I conclude the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, based on those matters at cl 6.2(3) of the WLEP.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

16. As the proposal is for a residential flat building of 3 storeys, the provisions of SEPP 65 apply.

17. Clause 28(2) of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following:

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

18. For whatever reason, the Minister has not constituted a design review panel in accordance with cl 19 of SEPP 65 of a kind cited in cl 28(2) of SEPP 65 in the Northern Beaches LGA.

19. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

20. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65.

21. The Applicant’s architect, Mr Scott Walsh (Arch Reg No 10366), has provided a design statement that is in a complying form and which demonstrates that the development is largely consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide.

22. On the basis of the design statement prepared by Mr Walsh, and the agreement of the parties, I am also of the opinion that the proposal is consistent with those standards at cl 30 that cannot be used as grounds to refuse development consent. Accordingly, I consider that adequate regard has been had to the design quality principles and to the objectives specified in the Apartment Design Guide, in accordance with cl 30(2).

State Environmental Planning Policy (Resilience and Hazards) 2021

23. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. I accept the reasons given in the Statement of Environmental Effects as to the long history of residential use on the site, and so I am satisfied the site will be suitable for the purpose proposed to be carried out.

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

24. Finally, I am satisfied that the application is accompanied by a BASIX certificate (BASIX Certificate No. 1252426M_03), prepared by Building Sustainability Assessments, dated 4 August 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

25. 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.

26. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

27. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority has, pursuant to cl 55 of the EPA Regulation, agreed to the Applicant amending the development application DA2021/2153 by relying on the following plans and other documents:

1.

Architectural Plans

Sheet	Revision	Date	Description
DA000	E	6.07.22	Cover Page
DA010	C	6.07.22	Existing Site Plan
DA020	C	6.07.22	Site Analysis
DA030	C	6.07.22	Demolition Plan
DA040	E	27.07.22	Proposed Site Plan
DA100	E	27.07.22	Basement Plan
DA101	E	27.07.22	Ground Floor
DA102	E	27.07.22	Level 1 Plan
DA103	E	27.07.22	Level 2 Plan
DA104	E	27.07.22	Roof Plan
DA200	E	27.07.22	Sections – Sheet 1
DA201	E	27.07.22	Sections – Sheet 2
DA301	E	27.07.22	Elevations
DA400	E	27.07.22	Area Calculation – Landscape & Communal
DA500	E	27.07.22	Shadow Diagrams – 9am June 21st
DA502	E	27.07.22	Shadow Diagrams – 12pm June 21st
DA503	E	27.07.22	Shadow Diagrams – 3pm June 21st
DA600	E	27.07.22	Views from Sun – June 21st
DA601	E	27.07.22	Views from Sun – June 21st
DA602	E	27.07.22	Views from Sun – June 21st
DA603	E	27.07.22	Views from Sun – June 21st
DA604	E	27.07.22	Views from Sun – June 21st
DA605	E	27.07.22	Views from Sun – June 21st
DA606	E	27.07.22	Views from Sun – June 21st
DA700	C	6.07.22	Elevational Shadow Diagram – Existing
DA701	C	6.07.22	Elevational Shadow Diagram – DCP
DA702	E	27.07.22	Elevational Shadow Diagram – Proposed
DA900	E	27.07.22	ADG Compliance
DA901	E	27.07.22	8.5m LEP Hight Plane
DA950	C	6.07.22	Feasibility of 23A & 23 Pine Ave – Sheet 1
DA951	C	6.07.22	Feasibility of 23A & 23 Pine Ave – Sheet 2
DA960	C	6.07.22	Adaptable Apartment Plan

2.

Amended Landscape Plans by Plot Design Group

• Landscape Plan -Sheet 1, Drawing No LS501.1, Issue E

• Landscape Plan- Sheet 2, Drawing No LS501.2, Issue E

• Landscape Plan- Sheet 3, Drawing No LS503.1, Issue E

2 August 2022

3.

Schedule of Amendments by Walsh Architects

4 August 2022

4.

SEPP 65 Design Verification Statement by Walsh Architects

27 July 2022

5.

BASIX Certificate (certificate number:1252426_03)

4 August 2022

6.

Assessor Certificate

4 August 2022

7.

Addendum Geotechnical Letter from Alliance

3 August 2022

2. The amended application was lodged on the NSW Planning Portal on 15 August 2022.

3. The amended application was filed with the Court on 8 August 2022.

Orders

28. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendment to the development application as agreed or assessed.

2. The appeal is upheld.

3. Development application no. DA2021/2153 for the demolition of 2 dwellings and the construction of a residential flat building and consolidation of Lot A and Lot C in DP 403991 at 27a-29 Pine Avenue, Brookvale is determined by the grant of consent, subject to the conditions of consent set out in Annexure A.

……………………

T Horton

Commissioner of the Court

**********

Annexure A 

Decision last updated: 02 September 2022