AJJ Burwood Pty Limited v Burwood Council

[2019] NSWLEC 1585

Land and Environment Court

New South Wales

Medium Neutral Citation:	AJJ Burwood Pty Limited v Burwood Council [2019] NSWLEC 1585
Hearing dates:	Conciliation conference on 4 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure “A”. (2) The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $5,000. (3)   The clause 4.6 variation request in relation to the height of buildings development standard pursuant to clause 4.3 of Burwood Local Environmental Plan 2012 is upheld. (4)   Appeal upheld. (5)   Development application DA 10.2018.14.1 for demolition of existing structures and construction of a residential flat building consisting of 19 apartments and associated basement parking at 55A-57 Stanley Street, Burwood is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	AJJ Burwood Pty Limited (Applicant) Burwood Council (Respondent)
Representation:	Counsel: A Knox (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/66216
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of Development Application No 10.2018.14.1 for the demolition of existing structures and the construction of a residential flat building consisting of nineteen apartments and associated basement parking at 55A – 57 Stanley Street, Burwood (the Site).

2. The background facts are set out in the Council’s Statement of Facts and Contentions (SOFAC) filed with the Court on 13 May 2019.

3. In accordance with the Court’s usual practice, a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), was convened between the parties on 4 November 2019. I presided over the conciliation.

4. During the conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the applicant’s amended application on a conditional basis.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In this case the parties identified that the proposal breaches the development standard in cl 4.3 of the Burwood Local Environmental Plan 2012 (BLEP). In order to grant consent in accordance with their agreement the Court must approve of a variation of cl 4.3 under cl 4.6 of the BLEP.

6. The applicant relies upon the written request made pursuant to cl 4.6 of the BLEP prepared by SJB Planning dated 4 November 2019.

7. Relevantly, the request describes the site as being located about 500m southwest of the Burwood Railway Station and Burwood Town Centre on land zoned the R1 General Residential under BLEP. The objectives of this zone are:

• To provide for housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

8. It also records that the objectives of the height of buildings development standard in cl 4.3 are:

(a) to establish the maximum height of buildings to encourage medium density development in specified areas and maintain Burwood’s low density character in other areas,

(b) to control the potentially adverse impacts of building height on adjoining areas.

9. The maximum height standard for a building on the subject site is 14m. The height of the proposed development is as follows:

• Maximum 13.6m to the main roof parapet at Level 3;

• Maximum 15.14m to the Level 4 roof;

• Maximum 15.2m to the lift overrun.

10. As the request explains, the extent of the breach of the height standard is at the proposed lift overrun. At that element, it is 1.2m (or 8.57%) higher that the maximum height under the development standard. Whereas, the overall maximum height, excluding the lift overrun, is 15.14m which represents a 1.14m (or 8, 14% variation), and this occurs at the roof of level 4 in the north-western (rear) corner of the site.

11. When read with the Height of Buildings Map, the request records that cl 4.3 seeks to achieve development of a higher scale and density within the Town Centre and that this site is located within this area.

12. As required by cl 4.6(3)(a), I am satisfied that the written request has adequately demonstrated that the contravention of the standard in cl 4.3 is justified because the development achieves the objectives of the standard. In those circumstances, compliance with the height control in cl 4.3 is unreasonable or unnecessary. As the request explains at pp. 4-5, the development complies with the maximum FSR and setback controls and has a height that is generally commensurate with that permitted. The breaches are isolated to discrete elements of the building.

13. Ultimately, the proposal provides a medium density development within the area contemplated for development of the type proposed, as demonstrated by the zoning thereby achieving objective (a). And, for the reasons outlined at pp. 5-6 of the request, including; - that level 4 of the building is setback 6m from the side boundaries to minimise the visibility of the uppermost floor with the result that the non-compliant elements are not visible from the public domain in the vicinity of the site – I am satisfied that the request demonstrates that the proposal has been designed to control any potentially adverse impacts on adjoining areas in terms of overshadowing and visual and acoustic privacy thereby achieving objective (b).

14. The development is also consistent with the first two zone objectives. In that regard, the proposal provides for the housing needs of the community by offering 19 new residential apartments (3 x studio/one (1) bed, 14 x two (2) beds, and 2 x three (3) beds). It also provides a mix of studio/one bed, two bed and three bed apartments, adding to the variety of housing types in the locality. The proposal complies with the maximum FSR applicable to the site and will contribute to the provision of densities.

15. As required by cl 4.6(3)(b), the request also establishes that there are sufficient environmental planning grounds to justify the contravention of the development standard. The aspect or feature of the proposed development which contravenes the height standard is a part of the roof and a portion of the lift overrun (1.2m variation) of Level 4. The non-compliant elements do not give rise to any additional adverse environmental impacts in terms of overshadowing, visual amenity streetscape visual and acoustic privacy. The request records that the non-compliant elements permit access to Level 4 where the communal roof terrace is proposed, and this I agree achieves additional amenity for the future residents.

16. As the request has adequately addressed the matters required to be demonstrated by subcll (a) and (b) in accordance with cl 4.6(4)(i); and, is consistent with objectives of the standard in cl 4.3 and the R1 General Residential zone under the BLEP, I am satisfied that the proposal is in the public interest: cl 4.6(4)(ii).

17. In the absence of the concurrence of the Secretary, I am also satisfied that the contravention of the height standard does not raise any issue of State or regional planning significance as it relates to local and contextual conditions. While there is benefit in maintaining public standards, there is also a public benefit in maintaining a degree of flexibility in specific circumstances – such as the case at hand.

18. Therefore, I approve the variation of development standard for height of buildings set out in cl 4.3 under cl 4.6 of the BLEP.

19. As required under s 34(3) of the LEC Act I now dispose of the proceedings in accordance with the parties’ decision.

20. The Court orders:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure “A”.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $5,000.

3. The clause 4.6 variation request in relation to the height of buildings development standard pursuant to clause 4.3 of Burwood Local Environmental Plan 2012 is upheld.

4. Appeal upheld.

5. Development application DA 10.2018.14.1 for demolition of existing structures and construction of a residential flat building consisting of 19 apartments and associated basement parking at 55A-57 Stanley Street, Burwood is approved subject to the conditions at Annexure “A”.

……………………….

S Dixon

Senior Commissioner of the Court

Annexure A (179 KB, pdf)

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Decision last updated: 29 November 2019