AP Development No. 2 Pty Limited v North Sydney Council

[2023] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:

AP Development No. 2 Pty Limited v North Sydney Council [2023] NSWLEC 1035

Hearing dates:

Conciliation conference on 10 November, 1 and 14 December 2022 and 16 January 2023

Date of orders:

1 February 2023

Decision date:

01 February 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant's written request prepared by Ethos Urban dated 9 December 2022, pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013, to vary the height development standard in cl 4.3 of the North Sydney LEP is upheld.
(2) The Appeal is upheld.
(3) Development Application No. DA144/22 for the demolition of existing buildings and construction of a residential flat building at 7-11 Premier Street, Neutral Bay is determined by the grant of consent subject to the conditions set out in Annexure A.
(4) The applicant is to pay the Respondent’s costs thrown away in the sum of $9,700 pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT APPEAL – demolition – residential flat building – view sharing – height of building – conciliation conference - agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 8.7, 8.14

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, ss 34, 39

North Sydney Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 4.6, 6.1

State Environmental Planning Policy 55–Remediation of Land, cl 7

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

State Environmental Planning Policy (Biodiversity & Conservation) 2021

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

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

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

AP Development No 2 Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
J Doyle (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/220363

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. DA144/22 (“DA”) (as finally amended) seeking consent for the demolition of existing structures and construction of a four storey residential flat building (the Proposed Development) at 7-11 Premier Street, Neutral Bay legally described as SP 12232, SP 64663 and SP 8435 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 November, 1 and 14 December 2022 and 16 January 2023. I have presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. 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. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be relevant provisions of North Sydney Local Environmental Plan 2013 (“NSLEP”), State Environmental Planning Policy No 55–Remediation of Land (Remediation SEPP), of which is now SEPP (Resilience and Hazards) 2021 (SEPP (R&H)), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity SEPP), and State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development (SEPP 65). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement which I have considered and adopt in my reasons in this judgment as set out below.

6. The parties agree that all Contentions raised in the Statement of Facts and Contentions filed on 8 September 2022 (“SOFAC”) have been resolved by the preparation of the following documents:

1. amended plans and documents referred to in the Table at [30(1)] below; and

2. agreed conditions of consent (Annexure A).

7. The owners of the Site are Strata Plan 12232, Strata Plan 64663 and Strata Plan 8435 (Owners). The DA was made by AP Developments No.2 Pty Limited with the consent of the Owners as evidenced by the DA Form filed with the Class 1 Application.

8. The DA in its original form was advertised and notified to adjoining and nearby landowners in accordance with Council’s notification policy from 3 June 2022 until 17 June 2022. Council received 15 submissions which raised matters to do with height, bulk, scale, excavation, streetscape, impacts on views, dwelling mix, overshadowing to property to the south and tree removal.

9. The objectors’ concerns were considered by the Council and where appropriate were incorporated into the SOFAC. These concerns have also been considered by the parties in the resolution of the proceedings. Objectors expressed their concerns orally at the commencement of the conciliation conference at the front of the Site and from some neighbouring properties. The parties agree that the submissions of objectors are a relevant consideration under section 4.15(1)(d) of the EPA Act. The parties agree that the submissions of the objectors have been taken into account and that development consent can be granted to the DA.

10. In considering the DA and, in deciding whether to enter into a s 34 Agreement which will give rise to the grant of a development consent, the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act.

11. The NSLEP applies to the Site and is of relevance to the Proposed Development.

12. The Site is zoned R4 High Density Residential under the NSLEP and development for the purpose of residential flat building is permissible in the R4 zone. Demolition is permissible with consent pursuant to cl 2.7 of NSLEP.

13. The consent authority is required to have regard to the objectives of the R4 zone (cl 2.3, NSLEP). Those objectives are as follows:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high 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 development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To ensure that a reasonably high level of residential amenity is achieved and maintained.

14. The Parties agree that in response to the objectives of the R4 High Density Residential zone, the Proposed Development:

1. provides for a mix of two and three bedroom apartments all having ample amenity and being high quality housing within a high density residential environment;

2. does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area; and

3. achieves and maintains a high level of residential amenity.

15. Clause 4.3(2) of the NSLEP prescribes a maximum height of buildings standard of 12m for the Site. The Proposed Development contravenes the maximum height development standard where certain western edges of the roof structure are more than 12m above existing ground level mostly due to the proposed building being above the existing excavated nature of the site.

16. Clause 4.6 of NSLEP allows the Court, as consent authority, to grant consent to the Proposed Development notwithstanding the contravention of the maximum height development standard subject to it being satisfied that the relevant preconditions in cl 4.6 have been met. I am required to assess whether the contravention of the height of buildings development standard justified. I reproduce cl 4.6 of the NSLEP below:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

17. The Applicant relies on an updated written request seeking to justify the contravention of the maximum building height development standard in cl 4.3(2), prepared by Ethos Urban Planning dated 9 December 2022 (the Request).

18. The respondent agrees that the Request is well founded and is supportable.

19. The Court is satisfied that the Request seeking to justify the contravention of the development standard in cl 4.3 of the NSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the NSLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. I give my reasons below.

20. The Request adequately demonstrates that compliance with the maximum building height development standard is unnecessary or unreasonable in the circumstances and this assessment is made in Part 4.0 of the Request as against the five common methods as set out in Wehbe v Pittwater Council [2007] 156 LGERA 446; NSWLEC 827, a decision of Chief Justice Preston. The Applicant is not required to satisfy all five methods and these five methods are not exhaustive. The first method, relied on in the Request, is establishing that the Proposed Development achieves the objectives of the development standard notwithstanding non-compliance with the development standard of cl 4.3 of the NSLEP which are as follows:

4.3   Height of buildings

(1)  The objectives of this clause are as follows—

(a)  to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b)  to promote the retention and, if appropriate, sharing of existing views,

(c)  to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d)  to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e)  to ensure compatibility between development, particularly at zone boundaries,

(f)  to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

(g)  to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone E4 Environmental Living.

21. There are sufficient environmental planning grounds as demonstrated in Part 5.0 of the Request which includes an assessment of the breach of the height development standard against the topography of the Site. The Request notes that “whilst there are minor breaches at the Level 4 and Level 5 western parapets, the remainder of the building envelope to the rear of the site is substantially under the maximum height plane – up to 6.2m (c. 50% under the 12m height limit) … as such, this is a balanced, site-specific response to the site’s constraints.” At Part 5.2 of the Request there is a detailed assessment of minimising view loss noting that “the proposed massing and building height strategy has been carefully considered with regard to the site’s surrounding residential context, and in particular the existing views from residential apartments to the rear at 7 Highview Avenue, which currently benefit from district views captured west over the subject site … The view analysis shows that whilst some part of the view is lost from the lower units of 7 Highview Avenue, the design has sought to minimise this impact where possible, and those non-compliant parts of the proposed building that affect the view are as a result of the steep terrain and floorplates that are stepped to meet this terrain.” There is also an assessment at Part 5.3 of the Request as to the consistency of the Proposed Development with the objectives of the EPA Act at s 1.3.

22. The Court can grant consent without the concurrence of the planning secretary pursuant to s 8.14(3) of the EPA Act but should take into account the matters in cl 4.6(5) of the NSLEP. In this case the Development is a local development with a minor non-compliance and an adequately justified breach of the height standard. In the circumstances, the contravention of cl 4.3(2) of NSLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard as regards the determination of the DA.

23. I have referred to the Site Investigation report by EI Australia dated 18 March 2022 which is filed with the Class 1 Application (the EI Australia Report). The EI Australia Report finds on page 5 that the Site does not fall within any class of acid sulfate soil as mapped under the NSLEP and that based on the elevation of the land of 64 to 70m AHD any potential presence of acid sulfate soil is unlikely. I am satisfied that an Acid Sulfate Soil assessment is not required.

24. The provisions of cl 7 of the Remediation SEPP have been transferred into s 4.6 of the SEPP R&H. The only development history applicable to the Site is residential development. The prior uses of the Site being residential can be seen by the existing older strata scheme buildings currently on the Site. The EI Report confirms that there is no contamination identified on the Site excepting for possible asbestos within the fabric of the existing buildings. The EI Report makes recommendations mainly relating to the demolition stages of development which have been incorporated into the conditions of consent, namely conditions C20 and D4 which contain appropriate measures to follow in the event that the existing buildings contain asbestos or other contaminated material. The Court is satisfied that the Site can be developed if undertaken in accordance with the conditions of consent at Annexure A. I am satisfied that the requirements of cl 7 of the Remediation SEPP are met.

25. The Applicant provided a BASIX Certificate dated 22 April 2022 with the DA pursuant to the BASIX SEPP. The amendments to the DA are not considered to be material and an amended BASIX Certificate is not required.

26. SEPP 65 applies to the erection of a residential flat building. As required by SEPP 65, a design verification statement (DVS) has been prepared by PBD architects dated December 2022 which addresses the latest plans and provides the required certification.

27. The Parties acknowledge that there can be no clearing of land on the site without the consent of Council pursuant to the Biodiversity SEPP. In this instance the mechanism would be a consent to DA144/22 to the extent that clearing of land is sought in the DA.

28. The parties have had regard to the relevant provisions of the North Sydney Development Control Plan 2013 (NSDCP). In evaluating the merits of the Proposed Development, the parties have had particular regard to the references to the NSDCP noted in the SOFAC and the particularised Contentions as required by s 4.15(1)(a)(iii) of the EPA Act.

29. 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 for the reasons given above.

30. 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.

Notations:

31. The Court notes that:

1. North Sydney Council, as the relevant consent authority, has agreed, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA144/22 to rely upon the following plans and documents:

Plan No.	Issue	Title	Drawn by	Dated
DA101	D	Lower Basement Plan	PBD Architects	7/12/2022
DA102	D	Upper Basement Plan	PBD Architects	7/12/2022
DA103	D	Ground Floor Plan	PBD Architects	7/12/2022
DA104	D	Level 1 Floor Plan	PBD Architects	7/12/2022
DA105	D	Level 2 Plan	PBD Architects	7/12/2022
DA106	D	Level 3 Plan	PBD Architects	7/12/2022
DA107	D	Level 4 Plan	PBD Architects	7/12/2022
DA108	D	Roof Plan	PBD Architects	7/12/2022
DA201	D	West Elevation	PBD Architects	7/12/2022
DA202	D	North Elevation	PBD Architects	7/12/2022
DA203	D	East Elevation	PBD Architects	7/12/2022
DA204	D	South Elevation	PBD Architects	7/12/2022
DA301	D	Section A	PBD Architects	7/12/2022
DA302	D	Section B	PBD Architects	7/12/2022
DA400	A	Schedule of Materials	PBD Architects	29/4/2022
5	F	Landscape Master Plan	LandFX Landscape Architecture	November 2022
6	F	Landscape Plan – Ground Level/Foyer	LandFX Landscape Architecture	November 2022
7	F	Landscape Plan - Rooftop	LandFX Landscape Architecture	November 2022
8	F	Landscape Sections A&B – Northern and Southern Boundaries	LandFX Landscape Architecture	November 2022
9	F	Landscape Section C – East West Site Section	LandFX Landscape Architecture	November 2022
10	F	Indicative Materials and Finishes Palette	LandFX Landscape Architecture	November 2022
11	F	Indicative Planting Palette	LandFX Landscape Architecture	November 2022
400	F	Planting Schedule	LandFX Landscape Architecture	9/12/2022
401	F	Planting Plan Upper Basement	LandFX Landscape Architecture	9/12/2022
402	F	Planting Plan Ground Floor	LandFX Landscape Architecture	9/12/2022
403	F	Planting Plan Level 1	LandFX Landscape Architecture	9/12/2022
404	F	Planting Plan Level 2	LandFX Landscape Architecture	9/12/2022
405	F	Planting Plan Level 3	LandFX Landscape Architecture	9/12/2022
406	F	Planting Plan Level 4	LandFX Landscape Architecture	9/12/2022
701	F	Landscape Details	LandFX Landscape Architecture	9/12/2022
800	F	Landscape Specification	LandFX Landscape Architecture	9/12/2022
-	-	Arboricultural Impact Assessment Report	Apex Tree and Garden Experts	15/2/2022
E25529.G03	-	Geotechnical Investigation 7-11 Premier Street, Neutral Bay NSW	EI Australia	14/4/2022
P00177	001	Noise and Vibration Impact Assessment	E-LAB Consulting	27/4/2022
E25529.E01	0	Preliminary Site Investigation	EI Australia	18/3/2022
22044-DA	R1.1	Access Report	Access I Pty Ltd	27/4/2022
3843	B	Operational Waste Management Plan	Elephants Foot	22/4/2022

2. The Applicant filed the amended development application with the Court on 21 December 2022.

Orders:

32. The Court orders:

1. The Applicant’s written request prepared by Ethos Urban dated 9 December 2022, pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013, to vary the height development standard in cl 4.3 of the North Sydney LEP is upheld.

2. The Appeal is upheld.

3. Development Application No. DA144/22 for the demolition of existing buildings and construction of a part 4 – part 5 storey residential flat building including 18 apartments and two levels of basement car parking at 7-11 Premier Street, Neutral Bay is determined by the grant of consent subject to the conditions in Annexure A.

4. The applicant is to pay the Respondent’s costs thrown away in the sum of $9,700 pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 within 28 days of the date of these orders.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 01 February 2023