Aplus Architecture Pty Ltd v North Sydney Council

[2023] NSWLEC 1586

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aplus Architecture Pty Ltd v North Sydney Council [2023] NSWLEC 1586

Hearing dates:

Conciliation conference held on 30 June 2023

Date of orders:

6 October 2023

Decision date:

06 October 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The Applicant’s amended written request under clause 4.6 of the North Sydney Local Environmental Plan 2013 (LEP) prepared by Haskew de Chalain Planning, dated 18 April 2023, seeking a variation of the development standard for height under clause 4.3 of the LEP is upheld.

(2) The appeal is upheld.

(3) Development Application D155/22, which seeks demolition of existing buildings, construction of new residential flat buildings and associated basement car parking at 4, 6, 8A, 8B, 8C, 10A, 10B, and 12-14 Merlin Street, and 1 McIntosh Lane, Neutral Bay, is determined by the grant of consent and subject to the conditions of consent contained at Annexure A.

(4) The Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $31000 as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 29, 30

Texts Cited:

North Sydney Development Control Plan 2013

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

Category:

Principal judgment

Parties:

Aplus Architecture Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
S Zhao (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
King & Wood Mallesons (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/225334

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application D155/22 by the North Sydney Council (hereafter the Council) which seeks demolition of existing buildings, construction of (two) new residential flat buildings and associated basement car parking on the following Lots, also known as 4-14 Merlin Street and 1 McIntosh Land, Neutral Bay (the site):

• Lot CP, Strata Plan (SP) 10239,

• Lots 1 and 2, Deposited Plan (DP) 850783,

• Lots 1, 2, 3, 4 and 5, DP 813398, and

• Lot CP, SP 30686

Background

2. Development Application D155/22 (the DA) was lodged with Council on 30 May 2022. The original DA was notified to residents, with eight submissions received, including two in support of the DA.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environment Planning and Assessment Act 1979 (EPA Act).

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and then held in person before me as Duty Commissioner.

5. The Council agreed for the applicant to amend the DA, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). Following amendment of the DA, the amended application was renotified, and Council received 21 submissions.

6. Based on the further amended application 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. The parties agree that the contentions of Council have been resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The agreed position of the parties is for the Court to grant consent to the amended Development Application D155/22, with conditions as described in Annexure A.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application D155/22, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:

1. North Sydney Local Environmental Plan 2013 (NSLEP):

1. Pursuant to cl 2.3 of the NSLEP, the proposed development is situated over land zoned R4 High Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R4 zone.

2. The amended application is supported by relevant plans and documents that sufficiently address the relevant objectives, aims, standards and provisions of the NSLEP. The proposed development, however, breaches the height standard described in cl 4.3, that requires buildings on the site to be less than 12m in height. Therefore, the application relies on a cl 4.6 written request to vary the height standard, pursuant to cl 4.6 of the NSLEP.

3. The proposed development presents as two residential flat buildings, with proposed Building A having a maximum height of 27.49m (a non-compliance of 15.49m, a variation of 129%), and Building B having a height of 15.18m (a non-compliance of 3.18m, a variation of 26%).

4. The cl 4.6 written request provided to the Court explains that the non-compliance in the height standard does not result in a development that is incompatible with the existing buildings (to be demolished) on the site, responds to the landform, and results in a similar and improved amenity for surrounding residents, specifically relating to privacy and solar access. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed buildings to the streetscape, compared to what is existing, or result in further adverse bulk and scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard.

5. The Court must be satisfied to grant consent to the application that the cl 4.6 request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the NSLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the height standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R4) in cl 2.3 of the NSLEP and height standard (cl 4.3). The breach in the height standard will not cause adverse impact to (existing and future) surrounding residents, the streetscape, or those utilising the site. The relevant concerns raised by residents have been considered in the design of the buildings. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development.

6. I am satisfied that the requirements of cl 4.6 of the NSLEP have been addressed, and that a variation in the cl 4.3 height development standard should be granted.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The contamination status of the site must be considered, prior to grant of consent. The Council has assessed that the site is suitable for residential use, based on its historic use and documents that support the DA, which together with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.

2. The DA relies on a Preliminary Site Investigation, prepared by JK Environments, dated 13 April 2022 and a Detailed Site Investigation, prepared by EI Australia, dated 29 March 2023. These investigations identified a limited area of contamination that is capable of being remediated, as described in the conditions and which does not make the site unsuitable for the proposed use.

3. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65):

1. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP 65. Specifically, the proposed residential flat building complies with cll 29 and 30, with the provision of a Design Verification Statement, prepared by Aplus Design, dated 17 May 2023, describing a design consistent with the requirements of the Apartment Design Guide 2015.

4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport):

1. The site is in proximity to the Warringah Freeway, Falcon Street and Military Road, being classified roads, that engage the SEPP Transport in consideration of the proposed development.

2. The amended DA provided appropriate and safe access that satisfy s 2.119 of the SEPP Transport, and the apartments have been designed to address noise impacts from the classified roads, consistent with the requirements of s 2.120.

5. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The amended DA proposes to remove trees on the site, and replace these trees plus plant additional trees, consistent with the relevant requirements of the SEPP Biodiversity.

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

1. The proposed development complies with the provisions of the SEPP BASIX. A BASIX Certificate (1365968M_04), relevant to the proposed development as amended, is identified in the conditions of consent.

7. North Sydney Development Control Plan 2013 (NSDCP):

1. The original DA was publicly notified in accordance with the NSDCP. Council in their merit assessment explain that the issues raised by objectors have been considered before reaching the agreement.

2. The relevant requirements of the NSDCP are generally complied with, based on the merit assessment of Council.

9. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners relevant to the amended DA.

Grant of consent

10. In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention and by surrounding residents have been considered and where required, addressed by the amendments made to the DA.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application D155/22 should be granted consent, as it addresses the relevant requirements of the EPA Act.

13. 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.

14. The Court notes that:

1. North Sydney Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application D155/22.

2. Amendments to Development Application D155/22 were filed with the Court on 19 June 2023.

3. The Respondent shall register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of the below orders.

4. For the avoidance of doubt, the amount of costs thrown away as agreed in order (4) are inclusive of any amount covered by the order for costs thrown away made by the Court on 3 March 2023.

15. The Court orders that:

1. The Applicant’s amended written request under clause 4.6 of the North Sydney Local Environmental Plan 2013 (LEP) prepared by Haskew de Chalain Planning, dated 18 April 2023, seeking a variation of the development standard for height under clause 4.3 of the LEP is upheld.

2. The appeal is upheld.

3. Development Application D155/22, which seeks demolition of existing buildings, construction of new residential flat buildings and associated basement car parking at 4, 6, 8A, 8B, 8C, 10A, 10B, and 12-14 Merlin Street, and 1 McIntosh Lane, Neutral Bay, is determined by the grant of consent and subject to the conditions of consent contained at Annexure A.

4. The applicant is to pay the respondent’s costs thrown away in the agreed amount of $31000 as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 06 October 2023