Albert Developments 3 Pty Ltd v Sutherland Shire Council

[2022] NSWLEC 1532

Land and Environment Court

New South Wales

Medium Neutral Citation:

Albert Developments 3 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1532

Hearing dates:

31 August 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) the Applicant’s written request prepared pursuant to cl 4.6 of Sutherland Local Environmental Plan 2015, and seeking to vary the height of buildings development standard in cl 4.3 of Sutherland Shire Local Environmental Plan 2015, is upheld;

(2) the Appeal is upheld;

(3) Development Application No DA21/0357 for demolition of existing structures and construction of a multi dwelling development comprising 10 townhouses (including 2 affordable townhouses) and basement car parking for 20 vehicles at 261-263 Port Hacking Road Miranda is determined the granting of consent, subject to the conditions in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7,

Environmental Planning and Assessment Regulation 2000, cl 55

Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment, cl 8

Interpretation Act 1987, ss 5 and 30A

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 13, 15, 16A, 17

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

State Environmental Planning Policy (Housing) 2021, cl 12

State Environmental Planning Policy (Infrastructure) 2007, cl 101

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 1.4

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.6, 5.21, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy (April 2021)

NSW Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development, March 2004

NSW Department of Planning, Industry and Environment, Low Rise Housing Diversity Design Guide, 2020

Sutherland Development Control Plan 2015

Sutherland Shire Council, Sutherland Community Engagement Policy, 2019

Category:

Principal judgment

Parties:

Albert Developments 3 Pty Ltd (Applicant)
Sutherland Shire (Respondent)

Representation:

Counsel:
M Mantei (Solicitor)(Applicant)
J Amy (Solicitor)(Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2021/285299

Publication restriction:

No

Judgment

1. COMMISSIONER: Albert Developments 3 Pty Ltd has appealed the refusal of its development application no. DA21/0357 (DA), made with owners’ consent, seeking consent for demolition of existing structures and construction of a multi dwelling housing development comprising of an affordable housing component with basement car parking (the Proposed Development) at 261-263 Port Hacking Road Severn Street, Miranda NSW (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development was placed on public exhibition by the Respondent initially in May 2021, and in its amended form in March 2022, consistent with the provisions of the Sutherland Shire Council’s Community Engagement Policy 2019, and 22 submissions were received from 16 individuals in response to that notification.

4. A further amended development application was re-notified by the Respondent between 30 June 2022 and 14 July 2022 to adjoining or affected owners of the Proposed Development and five submissions were received.

5. On 26 August 2022, the Parties participated in a conciliation conference and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy. A site inspection was undertaken at the commencement of the conciliation conference and two objectors provided oral submissions during the site view. They raised concerns in relation to the bulk and scale of the Proposed Development, as amended, the adequacy of proposed side setbacks to adjacent developments, including those owned by the objectors, potential solar access impacts arising from proposed tree plantings along the eastern boundary of the Subject Site adjacent to the objectors’ residences, and in relation to the mitigation of potential construction impacts should the Proposed Development, as amended, be granted consent.

7. The conciliation conference proper was undertaken via Microsoft Teams, and during this the Parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

8. Under s 34(3) of the Land and Environment Court Act 1979 (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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. on 1 March 2022, the provisions of the former and now repealed State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were repealed and transferred to Ch 4 of SEPP R&H;

2. section 4.6(1) of SEPP R&H provides that a consent authority must not consent to the carrying out of any development on land unless:

“(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that 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

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose”

3. the Parties have confirmed, and I am satisfied, that:

1. the Applicant’s detailed site investigation prepared by Australian GeoEnviro and dated 12 July 2022, along with a peer review prepared by Harwood Environmental Consultants and dated 19 July 2022, confirm that the Subject Site does not present a risk to human health, or the environment;

2. the Parties have agreed that a proposed condition of consent (proposed condition 25), concerning the management of unexpected finds, should be imposed with any grant of consent; and

3. based on the above, the Subject Site is considered suitable for its intended continuing residential use having regard to the provisions of the former cl 7(12) of SEPP No. 55, and cl 4.6 of SEPP R&H;

2. the Parties submit, and I agree, that:

1. the Proposed Development is BASIX affected development for the purposes of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and

2. an amended BASIX certificate (BASIX Certificate No. 1287202M_03) has been provided in fulfillment of the requirements of SEPP BASIX;

3. in relation to the provisions of cl 8 of Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment (REP 2):

1. clause 8 of REP 2 provides the consent authority, or the Court on appeal, must take into account the requisite principles outlined in clause 8; and

2. on 1 March 2022, REP 2 was repealed and its provisions were transferred into the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC); and

3. by operation of cl 1.4 of the SEPP BC and ss 5(6) and 30A(2) of the Interpretation Act 1987 (NSW), the provisions of the REP 2 continue to apply to the Proposed Development, as amended; and

4. the Parties have confirmed, and I am satisfied, that the Applicant’s Statement of Environmental Effects has demonstrated that:

1. the general principles contained in clause 8 have been taken into account in the planning and assessment of the Proposed Development, as amended; and

2. the Proposed Development, as amended, will provide for protection of environmental quality and will maintain water quality, consistent with the aims and objectives of REP 2;

4. the Subject Site has frontage to Port Hacking Road, which is a classified road, and in relation to this:

1. clause 101(2) of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) provides that a consent authority, or the Court on appeal, must be satisfied the proposed development satisfies the requirements of cl 101 (2); and

2. on 1 March 2022, the SEPP Infrastructure was repealed, and its provisions were transferred to the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I);

3. by operation of cl 1.4 of the SEPP T&I, and ss 5(6) and 30A(2) of the Interpretation Act 1987 (NSW), the provisions of SEPP Infrastructure continue to apply to the Proposed Development, as amended; and

4. the Parties have confirmed, and I am satisfied that, on the basis of the Applicant’s traffic impact assessment report prepared by GTA Consultants and dated 31 March 2021, the provisions of cl 101(2) of the SEPP Infrastructure have been satisfied;

5. the Proposed Development, as amended, is subject to the provisions of Pt 2, Div 1 (Infill Affordable Housing) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and in relation to this:

1. on 1 March 2022, SEPP ARH was repealed, and its provisions were transferred into State Environmental Planning Policy (Housing) 2021 (SEPP Housing), and by operation of cl 12 of the SEPP (Housing) and ss 5(6) and 30A(2) of the Interpretation Act 1987 (NSW), the provisions of the SEPP ARH continue to apply to the Applicant’s Proposed Development, as amended;

2. the provisions of cll 13, 15, 16A and 17 contained in Pt 2, Div 1 of SEPP ARH impose jurisdictional limits on the power of a consent authority, or the Court on appeal, to grant consent to a proposed development, and in relation to these provisions:

1. in relation to the provisions of cl 13, the Parties have confirmed, and I am satisfied, that the Proposed Development, as amended, and based on the Applicant’s plan A3001 (Rev F) dated 20/6/22), is compliant with the floor space ratio (FSR) applicable to development that includes affordable rental housing, as calculated as prescribed under the provisions of cl 13(2)(a);

2. in relation to the provisions of cl 15, the Parties have confirmed, and I am satisfied, that the design of the Proposed Development, as amended, has taken account of both the “Seniors Living Policy: Urban Design Guidelines for Infill Development” published by the Department of Infrastructure, Planning and Natural Resources in March 2004 and the “Low Rise Housing Diversity Design Guide”;

3. in relation to the provisions of clause 16A, the Parties have confirmed, and I am satisfied, that the Proposed Development, as amended, is compatible with the character of the local area;

4. in relation to the provisions of clause 17, the Parties have confirmed, and I am satisfied, that the agreed imposition of conditions 42A and 42B satisfy the requirements of clause 17 of SEPP ARH;

6. in relation to the provisions of Sutherland Shire Local Environmental Plan 2015 (SSLEP):

1. the Subject Site is situated within Zone R3 Medium Density Residential pursuant to the provisions of cl 2.3 of SSLEP, and development for the purposes of a multi dwelling residential use is permissible with consent in Zone R3;

2. clause 2.3 concerning zone objectives and land use table, and in relation to which:

1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

2. the Subject Site is zoned R3 Medium Density Residential, the objectives of which 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 encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.

To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.

To allow development that is of a scale and nature that provides an appropriate transition to adjoining land uses....

3. the Parties have confirmed, and I am satisfied, that the objectives of the R3 zone have been considered and the Development Application (as amended) achieves the objectives of the R3 zone;

4. the Proposed Development, as amended, has a compliant FSR (see above at [(5)(b)(i)], noting that the base FSR development standard for the Subject Site is 0.7:1, but the development is subject to a bonus FSR allowance as it contains an element of affordable rental housing;

5. the Subject Site is subject to a maximum height of buildings (HoB) development standard of 9m pursuant to cl 4.3 of SSLEP, and the Proposed Development (as amended) exceeds this standard, and in relation to this:

1. the Applicant has provided a written request, pursuant to the provisions of cl 4.6 of SSLEP, prepared by Think Planners and dated 24 June 2022, seeking to vary the development standard in cl 4.3 of SSLEP;

2. the Applicant’s cl 4.6 written request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as the objectives of the standard in cl 4.3 are achieved, notwithstanding the non-compliance of the Proposed Development, as amended;

3. the Applicant’s cl 4.6 written request has also demonstrated that there are sufficient environmental planning grounds to justify the exceedance which arises as a consequence of a requirement to establish the floor level of the Proposed Development above flooding levels on the Subject Site, noting also that the exceedance is modest in scale, centrally located within the development, and does not give rise to any impacts; and

4. the Parties have submitted, and I am satisfied, that the Applicant’s written request should be upheld because the request has satisfactorily addressed the provisions of cll 4.6(3) and 4.6(4) of SSLEP and approval of the Proposed Development, as amended, will be in the public interest because it is consistent with the objectives of the HoB development standard in cl 4.3 of SSLEP and with the objectives for development within the R3 zone in which the development is proposed to be carried out;

6. concerning the provisions of cl 5.21 of SSLEP in relation to flood planning, the Parties have submitted, and I am satisfied, that:

1. the Proposed Development satisfies 5.21(2)(a), (c) and (d) of SSLEP because the proposed floor levels shown on the architectural plans by Mackenzie Internal Architects, drawing A1002 issue G (RL13.650) for ground floor habitable floor levels and non-habitable levels (RL12.85) for the driveway crest are above the flood planning level and are consistent with the flood mitigation measures recommendations on page 12 of the Applicant’s Flood Impact Assessment (FIA) prepared by Amity Engineers Revision B dated 17 February 2022; and

2. the proposed development satisfies clauses 5.21(2)(b) and (e) of SSLEP on the basis of the opinion expressed at Page 6 of the FIA that the proposed development has a minimal effect on the existing flood conditions and there will be no adverse effects to any neighbouring properties;

7. also in relation to the provisions of cl 5.21 of SLEP, the Court further notes the advice of the Parties that:

1. the design of the Proposed Development, as identified in the issue G architectural plans is compatible with the flood function and behaviour on the land,

2. the design and operation of the Proposed Development will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

3. the Proposed Development incorporates appropriate measures to manage risk to life in the event of a flood; and

4. the Parties’ proposed condition of consent 14D requires the Proposed Development to be managed in accordance with the flood risk management procedures and the flood management plan specified at pages 13 and 14 of the Applicant’s FIA;

8. concerning the provisions of cl 6.1 of SSLEP in relation to Acid Sulfate Soils, the Parties advise, and I am satisfied that:

1. the Subject Site is located within a class 5 Acid Sulfate Soils area; and

2. development consent is not required in relation to this clause as the Proposed Development, as amended, does not include 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 water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land;

9. concerning the provisions of cl 6.2 of SSLEP in relation to earthworks, the Parties advise, and I am satisfied, that, as documented within the Applicant’s statement of environmental effects, earthworks proposed as part of the Proposed Development, as amended, will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land;

10. concerning the provisions of cl 6.4 of SSLEP in relation to stormwater management, the Parties have advised, and I am satisfied, that the requisite stormwater management considerations in cl 6.4(3) have been addressed within the Applicant’s stormwater management revision C plans, prepared by Amity Engineering, and in particular noting the Parties’ advice that:

1. the Proposed Development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water in satisfaction of the provisions of cl 6.4(3)(a) of SSLEP and based on the Applicant’s Landscape Calculations Plan A 3002 Issue F and Landscape Plan prepared by Taylor Brammer rev C;

2. the provision of on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water was considered and assessed to be impractical, in satisfaction of the provisions of cl 6.4(3)(b) of SSLEP; and

3. the Applicant’s stormwater drainage plans, prepared by Amity Engineers (rev C), confirms that stormwater from the Subject Site is to be discharged by gravity to the kerb and gutter drainage system in Miranda Road via an easement to be created over 4 – 10 Miranda Rd Miranda, and all roof water and stormwater from the basement is diverted to an on-site detention tank which has 4 storm filter cartridges to treat the water prior to being to release to the stormwater infrastructure system in Miranda Road, in satisfaction of cl 6.4(3)(c) of SSLEP;

11. concerning the provisions of cl 6.14 of SSLEP in relation to the provision of landscaped areas within the Proposed Development, as amended, the Parties have advised, and I am satisfied, that:

1. the Proposed Development, as amended, complies with the development standard in this clause which requires 30% of the site to be landscaped area;

1. compliance with this standard is confirmed within the Applicant’s Landscape Calculations included within its Plan A3002 (Issue F);

2. the Proposed Development will also result in greater aesthetic quality and amenity for the occupants of the development and neighbours; and

3. the Applicant’s proposed landscaping is of high quality and builds on the site’s natural features and contributes positively to its context and site, as confirmed in the Applicant’s Landscape Plan (Revision C) prepared by Taylor Brammer;

12. concerning the provisions of cl 6.16 of SSLEP in relation to urban design (General), the Parties advise, and I am satisfied, that the requisite requirements of cl 6.16 have been considered during the assessment of the Applicant’s Proposed Development, as amended;

13. concerning the provisions of cl 6.17 of SSLEP in relation to urban design for residential accommodation, the Parties have confirmed, and I am satisfied that the requisite requirements of the provisions within cl 6.17 have been considered in the assessment of the Applicant’s Proposed Development, as amended;

7. in relation to the provisions of Sutherland Shire Development Control Plan 2015 (SSDCP), the Parties have confirmed, and I am satisfied, that the provisions of SSDCP have been taken into consideration in the assessment of the Applicant’s Proposed Development, as amended, and preparation of the Parties’ agreement to resolve contentions in the appeal, including in relation to the following:

1. Chapter 1 – Introduction;

2. Chapter 5 - Multi Dwelling Houses;

3. Chapter 36 - Vehicular Access, Traffic Parking and Bicycles;

4. Chapter 38 - Stormwater and Groundwater Management;

5. Chapter 40 - Environmental Risk;

6. Chapter 41 - Social Impact;

8. concerning matters related to draft state environmental planning policies, s 4.15(1)(ii) of the EP&A Act requires that a consent authority, or the Court on appeal, consider any proposed instrument that is or has been the subject of public consultation and that has been notified to the consent authority, and in relation to this the Parties agree that section 4.15(1)(ii) of the EP&A Act applies to the following draft instruments which have been considered in the assessment of the Proposed Development, as amended, and in relation to the Parties’ agreement to resolve their contentions in this appeal:

1. Draft State Environmental Planning Policy (Environment);

2. Draft State Environmental Planning Policy (Remediation of Land); and

3. Draft State Environmental Planning Policy (Housing Diversity).

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act;

2. the concerns expressed by the objectors, which is a relevant consideration under section 4.15(1)(d) of the EP&A Act, have been addressed, including in relation to matters identified by them (see above at [6]), the potential impact of proposed tree plantings along the development’s eastern boundary which have been amended by the Applicant; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. Further, 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.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

14. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, has agreed to the Applicant amending its development application DA21/0357 lodged 20 April 2021 in accordance amended documents as follows:

1. BASIX Certificate #1287202M_03 dated 28 July 2022;

2. detailed site investigation prepared by Australian GeoEnviro Pty Ltd and dated 12 July 2022;

3. review of detailed site investigation prepared by Harwood Environmental Consultants and dated 19 July 2022;

2. the documents identified above (at [(1)]) have been uploaded to the NSW Planning Portal.

Orders

15. The Court orders that:

1. the Applicant’s written request prepared pursuant to cl. 4.6 of Sutherland Local Environmental Plan 2015, and seeking to vary the height of buildings development standard in cl 4.3 of Sutherland Shire Local Environmental Plan 2015, is upheld;

2. the Appeal is upheld;

3. Development Application No DA21/0357 for demolition of existing structures and construction of a multi dwelling development comprising 10 townhouses (including 2 affordable townhouses) and basement car parking for 20 vehicles at 261-263 Port Hacking Road Miranda is determined the granting of consent, subject to the conditions in Annexure “A”.

…………………………..

M Chilcott

Commissioner of the Court

**********

Annexure A 

Decision last updated: 28 September 2022