Anthony Mitchell v Burwood Council

[2024] NSWLEC 1778

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anthony Mitchell v Burwood Council [2024] NSWLEC 1778

Hearing dates:

Conciliation Conference on 29 October 2024; final submissions 14 November 2024

Date of orders:

04 November 2024

Decision date:

04 November 2024

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA10.2024.14, for demolition works, alterations and additions to an existing heritage dwelling located at 25 Stanley Street, Burwood and the construction of a 9 storey residential flat building containing 49 apartments (7x1 bedroom apartments, 32 x 2 bedroom apartments and 10 x3 bedroom apartments) with 3 basement levels of car parking spaces (including 5 accessible spaces) and 20 bicycle spaces and ground level communal open space on the land at 19-23 Stanley Street, Burwood is determined by the grant of consent, subject to the conditions of consent set out at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Burwood Local Environmental Plan 2012, cl 4.3, 4.4, 5.10, Sch 5

Environmental Planning and Assessment Regulation 2021, s 29

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 2.6, 6.6, 6.7, 6.8

State Environmental Planning Policy (Housing) 2021 (Housing SEPP) Ch 2, ss 18, 19, 21, 147

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category:

Principal judgment

Parties:

Anthony Mitchell (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/207941

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 deemed refusal of Development Application No. DA.10.2024.14 Since the filing of the Class 1 appeal, the DA has been refused.

2. Development Application No. DA.10.2024.14 is for demolition works, alterations and additions to an existing heritage dwelling located at 25 Stanley Street, Burwood and the construction of a 9 storey residential flat building containing 49 apartments (7x1 bedroom apartments, 32x2 bedroom apartments and 10x3 bedroom apartments) with 3 basement levels of car parking spaces containing a total of 50 car parking spaces (including 5 accessible spaces) and 20 bicycle spaces and ground level communal open space on the land at 19-23 Stanley Street, Burwood, NSW, legally described as Lot 13 DP72901, Lot 1 and 2 in DP205678, and Lot 1 DP73875.

3. The subject site comprises four lots, located from the north-western corner of Hornsey Street along Stanley Street, Burwood. A two storey former corner shop occupies at 25 Stanley Street; the building is listed as an item of environmental heritage under Sch 5 of the Burwood Local Environmental Plan 2012 (BLEP 2012). 21-22 Stanley Street is occupied by a pair of two storey terrace houses. 19 Stanley Street is occupied by a single storey dwelling.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 October 2024. I presided over the conciliation conference, in the company of legal representatives, the Applicant and their teams.

5. The conciliation was adjourned to allow time for further documentation to be prepared by the Applicant and assessed by the Respondent. On the basis of the additional and amended documentation and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 14 November 2024; revised final agreement was submitted to the Court on 15 November 2024.

6. 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.

7. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Planning Framework

Burwood Local Environmental Plan 2012

8. The site is located within the R1 General Residential zone, pursuant to BLEP 2012. The proposal is consistent with the objectives of the zone, which are:

• To provide for the 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

9. The proposed development is for alterations and additions to an existing dwelling house and for the construction of a residential flat building. Residential flat buildings and dwelling houses are both permissible in Zone R1. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

10. Clause 4.3 (height of buildings) of BLEP 2012 provides for a maximum building height of 26 metres. Pursuant to s 18(2) of the State Environmental Planning Policy (Housing) 2021, the application is eligible for a 20% bonus to the height control, being a maximum height of 31.2m. The parties agree that amended plans indicate a maximum height of the proposal as 29.4 metres which complies with this standard.

11. The proposal complies with the maximum FSR of 3:1 that applies to the site under cl 4.4 (2) of the BLEP 2012. The parties agree that the amended plans propose an FSR of 2.7:1 which complies with this standard.

12. Pursuant to cl 5.10 (Heritage Conservation) of the BLEP 2012, development consent has been sought for the works to the heritage item and the consolidation of the lots. I am satisfied that consideration has been given by the parties to the effect of the proposed development on the heritage significance of the heritage item in accordance with cl 5.10(4), through their assessment of the heritage management documents including the Statement of Heritage Impact (Weir Phillips, 28 March 2024), Schedule of Conservation Works (Weir Phillips, 22 October 2024), Photographic Archival Recording (Weir Phillips, 28 October 2024) and the amended Heritage Conservation Works plans (Heritage 21, 1 November 2024).

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

13. I have considered whether the site is contaminated in accordance with s 4.6 of the RH SEPP. On the basis of the Preliminary Site Investigation Report (Hayes Environmental Consulting, 29 June 2024) that accompanied the DA, I accept that the site has been used for residential purposes for a substantial period of time and is unlikely to be contaminated, and is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP)

14. Pursuant to s 2.1(5) of the Sustainable Buildings SEPP, the application is accompanied by a BASIX certificate (no. 1400839M_03 dated 15 August 2024), prepared by ESD Synergy Pty Ltd.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

Tree Removal

15. Chapter 2 of the Biodiversity SEPP applies. The grant of development consent serves as a permit for the removal of trees pursuant to s 2.6(1).

Sydney Harbour Catchment

16. The development is subject to the provisions in Ch 6 of the Biodiversity SEPP as the site is identified as being within the ‘Sydney Harbour Catchment’, a regulated catchment under the Biodiversity SEPP.

17. I am satisfied that the development is consistent with the general controls on development for land within the Sydney Harbour Catchment, that the matters set out in s 6.6 - Water Quality and Quantity, have been considered, and that the development incorporates stormwater management measures to ensure the effect of water entering a natural water body will be as close as possible to neutral or beneficial and the impact on water flow in a natural waterbody will be minimised, based on the stormwater management plans (SGC Consulting Engineers) and on the conditions of consent (including conditions 50-56).

18. I am satisfied that, the matters set out in s 6.7 – Aquatic Ecology, have been considered and that the development will not result in an adverse impact on terrestrial, aquatic or migratory animals or vegetation and does not result in the clearing of significant vegetation, based on the Arborist Report (Birds Tree Consultancy, 29 June 2023) and will not result in erosion of land or the sedimentation of a natural waterbody, based on the stormwater management measures incorporated in the conditions of consent, or adverse impact on aquatic reserves or wetlands due to its location away from such areas.

19. I am satisfied that consideration has been given to the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems in accordance with s 6.8(1) based on the stormwater management measures proposed.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

20. The Development Application is subject to the in-fill affordable housing provisions under the Housing SEPP (Chapter 2, Part 2, Division 1).

21. I am satisfied that consideration has been given pursuant to s 18 – Affordable housing requirements for additional building height based on the affordable housing component provided, as set out in architectural drawing DA A300 (Tony Owen Partners).

22. I am satisfied that consideration has been given to the non-discretionary development standards pursuant to s 19, based on the schedule of areas provided (Tony Owen Partners, 11 July 2024), along with Landscape Diagram A 705 and architectural drawings A 098-A 100 (Tony Owen Partners).

23. I am satisfied that, pursuant to s 21(1), the development will include the required affordable housing component for a period of 15 years and that the affordable housing component will be managed by a registered Community Housing Provider (CHP), based on the conditions of consent (Condition 4 – Affordable Housing Requirement) and the nomination of Echo Realty as the Registered CHP (letter dated 4 November 2024).

24. Pursuant to s 147, I am satisfied that consideration has been given to the quality of the design of the development in accordance with the relevant design principles for residential apartment development, the Apartment Design Guide, based on the design verification statement (Tony Owen Partners, 5 June 2024), that accompanied the development application, and that advice received from the Burwood Design Review Panel (4 July 2024) has been considered in the amended documentation.

Other considerations

25. I note the advice of the parties that landowner’s consent for the development application has been provided for each of the four lots, and that the DA was publicly exhibited from 29 April 2024 to 21 May 2024, and that five written submissions were received.

26. I am satisfied that the parties have taken into consideration these submissions based on their assessment of, and agreement to, the amended documents.

27. I note that the development application is accompanied by a statement by a qualified designer pursuant to s 29 of the EPA Regulations 2021

Conclusion

28. I have considered the submissions made by the parties in the Jurisdictional Statement submitted to the Court on 14 November 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

29. I am required under s 34 (3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

30. 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.

Orders

31. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA 10.2024.14 (DA) for demolition works, alterations and additions to an existing heritage dwelling located at 25 Stanley Street, Burwood and the construction of a 9 storey residential flat building containing 49 apartments (7x1 bedroom apartments, 32 x 2 bedroom apartments and 10 x 3 bedroom apartments) with 3 basement levels of car parking spaces (including 5 accessible spaces) and 20 bicycle spaces and ground level communal open space on the land at 19-23 Stanley Street, Burwood is determined by the grant of consent, subject to the conditions of consent set out at Annexure A

Niall Macken

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 04 December 2024