Albert Street Group Pty Ltd v Cumberland Council

[2021] NSWLEC 1029

Land and Environment Court

New South Wales

Medium Neutral Citation:

Albert Street Group Pty Ltd v Cumberland Council [2021] NSWLEC 1029

Hearing dates:

Conciliation conference on 8 January 2021

Date of orders:

20 January 2021

Decision date:

20 January 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [13]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Holroyd Local Environmental Plan 2013

Land and Environment Court Act 1979

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Holroyd Development Control Plan 2013

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Albert Street Group Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Swaab Attorneys (Applicant)
Cumberland Council (Respondent)

File Number(s):

2020/157483

Publication restriction:

No

Judgment

1. COMMISSIONER: Albert Street Group Pty Ltd (the Applicant) has appealed the refusal by Cumberland Council (the Respondent) of its Development Application No. 2019/395/1, made with owner’s consent, seeking consent for a mixed use development including commercial and residential units across four storeys with basement car parking (the Proposed Development) at 399 Guildford Road, Guildford (the Subject Site).

2. The appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant now seeks leave to amend its development application and now it seeks consent for the construction of two business premises and six shop top housing dwellings above basement car parking.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 8 January 2021, and I presided over the conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy. No site view was undertaken during the conference, and no objectors had sought to make representations to the Court as part of the conciliation conference.

6. 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 the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. in relation to the provisions of Holroyd Local Environmental Plan 2013 (HLEP):

1. the Subject Site is zoned B2 Local Centre pursuant to the provisions of cl 2.3 of HLEP, and development for the purposes of a business premises and shop top housing is permissible with consent on the Subject Site under its B2 zoning;

2. as required by cl 2.3(2) of HLEP, regard has been given to the B2 zone objectives. The Parties are satisfied, and I accept, that the development reasonably satisfies zone objectives;

3. clause 4.3 of HLEP provides that a maximum building height development standard of 17m applies to the Subject Site and the Proposed Development has a proposed height of 16.5m, which complies with that development standard;

4. clause 4.4 provides for a maximum floor space ratio (FSR) development standard of 2:1 and the Proposed Development has a FSR of 1.14:1 which complies with the Subject Site’s FSR development standard;

5. while the Subject Site does not contain a heritage item and is not within a heritage conservation area it is located within proximity to a property referred to as ‘Hazeldene’, which is a late Victorian/Federation/Queen Anne Cottage located at 379 Guildford Road, Guildford. In respect of the provisions of cl 5.10(4) of HLEP, the Parties agree, and I accept, that any impact of the Proposed Development on ‘Hazeldene’ would be insignificant and do not constitute a reason to refuse the grant of consent to the Proposed Development;

6. the Subject Site is not marked on any of the following:

1. the Land Reservation Acquisition Map (cll 5.1 and 5.1A);

2. the Acid Sulfate Soils Map (cl 6.1);

3. the Biodiversity Map (cl 6.5);

4. the Riparian Lands and Watercourses Map (cl 6.6);

5. the Site Specific Provisions Map (cl 6.9); or

6. the Design Excellence Map (cl 6.11).

7. clause 6.3 of HLEP requires that the consent authority be satisfied that various essential services are available or that adequate arrangements have been made to make them available. The Respondent is satisfied, and I accept, that adequate arrangements are available or can be made available for water supply, electricity supply, sewage disposal, stormwater drainage and road access;

8. clause 6.7 of HLEP provides stormwater management controls applicable to development on the Subject Site, and in relation to matters for consideration identified within cl 6.7(2), the Respondent has advised, and I accept, that:

1. the Proposed Development conforms to expectations for water permeable surfaces noting that the site is zoned B2 Local Centre and is not subject to controls for site coverage or landscaped area;

2. it is not practicable to have, or to condition, the use of on-site stormwater retention for use as an alternative supply to mains water; and

3. adverse impacts of stormwater runoff on adjoining properties, to the extent they arise, would be minimised and mitigated by the imposition of conditions of consent.

9. the Subject Site is marked on the Salinity Map (cl 6.8) as having “moderate salinity potential”, and in relation to the provisions of cll 6.8(3) and 6.8(4) of HLEP, the Parties’ advise, and I accept, that:

1. the development is not likely to have any impact on salinity processes on the land;

2. salinity is not likely to have an impact on the development in any meaningful way; and

3. conditions of consent, may be imposed to avoid, minimise or mitigate salinity related impacts.

10. clause 6.10 of HLEP seeks to ensure that active uses are provided at the street level in the B2 Local Centre zone to encourage the presence and movement of people and in relation to the provisions of cl 6.10(3), the Parties are satisfied, and I accept, that:

1. the ground floor of the Proposed Development will not be used for residential accommodation;

2. the ground floor of the Proposed Development will not be used for a car park or to provide ancillary car parking spaces; and

3. the ground floor of the Proposed Development will provide for uses that encourage interaction between the inside of the building and the external public areas adjoining the building.

2. consistent with the provisions of cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and the Environmental Planning and Assessment Regulation 2000, a BASIX Certificate (Certificate number: 1032707M_02) was submitted with the amended application. The Certificate identifies that the development complies with applicable water, thermal comfort and energy targets;

3. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and specifically cl 7 of SEPP 55, identifies matters that must be considered before a development application is determined, and in relation to this:

1. although the land is not within an investigation area there is incomplete knowledge as to how the site was previously used. Uses that were previously permitted under former planning instruments included use referred to in Table 1 of the Contaminated Land Planning Guidelines;

2. in satisfaction of cl 7(2), the Applicant provided a preliminary site investigation, a detailed site investigation and a remediation action plan. Having considered those documents, the Council is satisfied that the land will, after remediation, be suitable for the purpose for which the development is proposed to be carried out.

4. the Parties are satisfied, and I accept, that the Proposed Development complies with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP65) and that the Proposed Development (as amended) demonstrates that adequate regard has been given to the Schedule 1 Design Quality Principles and Apartment Design Guide design criteria objectives as required by cl 30(2) of SEPP65;

5. pursuant to cl 45(1)(b)(iii) of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) applies to the Proposed Development as the Subject Site is located within 5m of an exposed overhead electricity power line. In accordance with cl 45(2)(a), the Respondent has given written notice of the Proposed Development to Endeavour Energy and invited comments. Endeavour Energy’s response has been considered by the Respondent, as required by cl 45(2)(b), and I accept that advice of Endeavour Energy does not give rise to any reason to refuse the grant of consent to the Proposed Development;

6. in relation to the provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SEPP SHC), the Subject Site in not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area and it is not shown as containing a heritage item. Notwithstanding this, I acknowledge that the matters referred to in cl 20(a) of SEPP SHC which identifies matters that should be considered by consent authorities before granting consent to development to which SEPP SHC applies have been considered and do not give rise to any matters that would preclude the grant of consent to the Proposed Development.

9. Having considered the advice of the Parties, provided above at [8], I agree that 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.

10. I am further 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.

11. 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.

12. 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.

13. The Court orders that:

1. The Applicant is granted leave to amend its development application to rely upon the following plans:

Drawing No. and Revision/Issue	Title	Prepared by	Date
1. Architectural plans
Dwg No. A.01.1 Issue D	Cover Page	Eco Factor Architects	2 November 2020 21 December 2020 2 November 2020
Dwg No. A.01.2 Issue E	Basix Commitments
Dwg No. A.01.3 Issue D	Doors & Windows Schedule
Dwg No. A.01.4 Issue D	Floor Plans
Dwg No. A.01.5 Issue D	Floor Plans
Dwg No. A.01.6 Issue D	First Floor Plan
Dwg No. A.01.7 Issue D	Second Floor Plan
Dwg No. A.01.8 Issue D	Third Floor Plan
Dwg No. A.02.1 Issue D	Solar Access
Dwg No. A.02.2 Issue D	Solar Access – Internal
Dwg No. A.02.3 Issue D	Solar Access – Internal – 3D
Dwg No. A.02.4 Issue D	Solar Access COS
Dwg No. A.02.5 Issue D	Solar Access COS
Dwg No. A.02.6 Issue D	Solar Access COS
Dwg No. A.02.7 Issue D	Cross Ventilation
Dwg No. A.03.1 Issue D	Shadow Diagrams
Dwg No. A.03.2 Issue D	Shadow Diagrams
Dwg No. E.01.1 Issue D	Elevations
Dwg No. E.01.3 Issue D	Elevation
Dwg No. E.01.4 Issue D	Elevation
Dwg No. E.01.5 Issue D	Streetscape Elevation
Dwg No. E.01.6 Issue D	3D View Existing Streetscape
Dwg No. E.01.7 Issue D	3D View Future Streetscape
Dwg No. E 01.8 Issue D	3D Perspective Ground Floor
Dwg No. S.01.1 Issue D	Section
Dwg No. S.01.2 Issue D	Section - Blowup
Dwg No. M.01.1 Issue D	Materials and Finishes
2. Landscape Plans
Drawing No L-01 Issue C	Landscape Concept	Outside In Design Group	19 October 2020
Drawing No L-02 Issue C	Elevations 1
Drawing No L-03 Issue C	Elevations 2
3. Engineering Plans
Project No SY20139-01	Cover Page	Barker Ryan Stewart	21 October 2020
Plan No SY20139-01-101 Rev C	Site Stormwater Plan
Plan No SY20139-01-102 Rev C	Drainage Design - Roof
Plan No SY20139-01-103 Rev C	Drainage Design – Second & Third Floors
Plan No SY20139-01-104 Rev C	Drainage Design – Ground & First Floors
Plan No SY20139-01-105 Rev C	Drainage Design – Basement
Plan No SY20139-01-106 Rev C	OSD & Detail Sheet
Plan No SY20139-01-107 Rev C	OSD Tank Plan & Sections
4.Survey of Street Poles
Drawing No 1676DET Rev 00	Plan Showing Power Line Adjustment Lot A in DP102447	Sydney Wide Surveying	17 August 2020

2. The Applicant is granted leave to amend its development application to rely upon the following documents:

Title	Prepared by	Date
Acoustic Assessment Report	Acoustic Dynamics	21 August 2020
Supplementary Traffic and Parking Response	Traffic Solutions Pty Ltd	30 October 2020
Waste Classification Assessment	ECON Environmental	6 August 2020
Preliminary Site Investigation	ECON Environmental	17 July 2020
Detailed Site Investigation	ECON Environmental	29 July 2020
Remedial Action Plan (RAP)	ECON Environmental	31 July 2020
Letter to Cumberland Council re VPA Offer	Swaab	2 November 2020
Sydney Water response re sewer pipe	Sydney Water	2 October 2020
BASIX Certificate No. 1032707M_02	Arminga Holdings Pty Ltd	18 December 2020
SEPP 65 Design Report and Design Verification Statement	Eco Factor Architects	18 December 2020

3. The Applicant is to pay the Respondent's costs in the sum of $3,000 arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979, payable within 28 days;

4. The appeal is upheld;

5. Development Application No. 2019/395/1, for the construction of a four-storey building comprising two business tenancies and six shop top housing dwellings with basement parking, landscaping and communal open space located on Lot A in DP 102447 otherwise known as 399 Guildford Road, Guildford, is approved subject to the conditions at Annexure A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (340385, pdf)

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Decision last updated: 20 January 2021