Ashbury Projects Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1824

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ashbury Projects Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1824

Hearing dates:

Conciliation conference on 30 September 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent's costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,750.00.

(2)   The application is granted.

(3) Development consent DA-826/2020, which was originally granted by the Land and Environment Court on 23 November 2021 (Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714) is modified in the terms set out in Annexure A.

(4) Development consent which was originally granted by the Land and Environment Court on 23 November 2021 (Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714) is modified by the Court, as set out in Annexure B.

Catchwords:

APPLICATION – modification application under s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify a Court-granted consent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 4.56, 8.15; Sch 1, cl 10

Canterbury-Bankstown Local Environmental Plan 2023, cll 2.1, 4.3, 4.4, 5.10, 6.3

Environmental Planning and Assessment Regulation 2021, ss 38, 107, 113

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85 Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714

Texts Cited:

Canterbury-Bankstown Development Control Plan 2023

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

Category:

Principal judgment

Parties:

Ashbury Projects Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
A Whealy (Applicant)
M Bonanno (Respondent)

Solicitors:
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2024/115709

Publication restriction:

Nil

JUDGMENT

Introduction

1. These proceedings arise following an application by Ashbury Projects Pty Ltd, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the modification of a Development Consent (No. DA-826/2020), granted by the Court on 23 November 2021 (Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714) (the original consent DA-826/2020) in respect to land at 149-163 Milton Street, Ashbury (site).

History of development consents for the site, modification applications and proceedings

Development Consent No. DA-826/2020

2. The original consent DA-826/2020 approved the demolition of all structures, removal of 50 trees, excavation, site remediation, civil works, new road, site landscaping and construction of 8 residential buildings including 127 dwellings over a single level common basement for parking.

Development Consent No. DA-826/2020/B

3. On 14 June 2024, Development Consent No. DA-826/2020/B was approved by the Council for internal and external alterations including increased floor-to-floor heights, lift overrun and overall increased building height, amended window layout and design, changes to unit configuration, increase in gross floor area (GFA), delete voids and install additional fire stairs to basement.

Subject modification application (Mod-C)

4. On 4 April 2024, the subject modification application was filed with the Court in respect to the original consent DA-826/2020.

5. Between 5 June and 2 July 2024, the modification application was publicly notified. A total of three submissions were received.

6. On 30 September 2024, the parties participated in the s 34 conciliation conference pursuant to the Land and Environment Court Act 1979 (LEC Act), at which I presided. During the conference the applicant amended its application, and the suite of amendments and additional material has resolved the contentions between the parties.

7. As amended, the application proposes:

1. redesign of northern communal open space to include a pool, associated BBQ facilities and accessible WC facilities.

2. redesign of southern landscaped communal open space to create casual lawn pockets and bench seating.

3. In respect to Building B:

1. minor alteration to the lift lobby area of Level 5 and provision of an accessible bathroom, in lieu of surplus plant area.

2. accessible WC facilities added to rooftop in lieu of previous mechanical plant, at rear of the lift core.

4. Façade amendments including:

1. Minor façade updates to Building C in response to additional built form on Building C. Minor materiality change to Building F. These changes include the following: Building C Northern façade of eastern wing; façade amended to read architecturally as two offset vertical forms in response to the additional built form above.

2. Building C West: The materiality on Level 4 is changed to brickwork, with the new uppermost level now having a light metal clad finish, mirroring the expression of Building B.

3. Building F East: A small portion of metal cladding changed to brickwork to allow for clearer definition of roof forms.

4. Building F North & South: Material change from glazing to infill panelling where windows are located against kitchens or stairs to offer greater privacy.

5. For Building C:

1. Extension of the south-eastern corner of level 3 and 4, creating 1 x 2-bedroom (111m²), and 1 x 3-bedroom (138m²) apartments, with balconies of 13m².

2. Addition of a part level (Level 5) comprising 1 x 3-bedroom (111m²), and 1 x 2-bedroom (138m²).

3. Minor internal layout changes to Unit C4.06 in response to additional built form above.

6. For the Basement:

1. Changes to allocation of car parking spaces (remaining at 251 spaces as approved), including the following changes:

1. Reduction in the number of resident parking spaces from 226 to 225.

2. Increase in the amount of visitor parking spaces from 25 to 27.

3. Relocation of the car wash bay / service vehicle space away from high traffic junction within basement.

2. Refinement of the layout and allocation of services and waste in basement (to comply with DA conditions) including the following:

1. Fire pump room reduced in size.

2. Fan room relocated from under Building B to area near visitor parking.

3. Bin Room 2 and Bulky Waste 2 reorganised to allow for additional parking.

4. Addition of plant room associated with the pool.

3. Reduction in extent and size of onsite detention (OSD) tank and amendments to overall stormwater design to align with current Canterbury-Bankstown Development Control Plan 2023 (DCP) standards.

7. Construction of four additional mechanical exhaust shafts located adjacent to Building C, D2 and F2, adjacent to pool facilities in northern communal open space.

8. Lift lobby roof for Buildings A and E amended to reflect headroom required for lift.

8. As the Council is now satisfied that the amendments to the application have resolved the contentions, the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions.

10. After a consideration of the parties’ written submission, I am satisfied that there is no legal impediment to the grant of consent to the proposed amendments to the DA. In that regard, I note the following:

Jurisdictional preconditions

EPA Act

11. The modification application has been made under s 4.55(8) of the EPA Act and satisfies the requirements of s 4.55(2) as set out below.

Section 4.55(2)(a)

12. The first jurisdictional requirement requires the Court to be satisfied that the development to which the consent, as modified, relates is substantially the same development as the development for which consent was originally granted.

13. Relevantly, the Council does not contend that the Court could not be satisfied that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted.

14. The in s 4.56(1)(a) as stated, requires the Court to be satisfied that the modified development “is substantially the same development” as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 at [18]-[19]). As such, the text of s 4.56(1)(a) invites a comparison between the development as proposed to be modified and the development approved under the original consent. That comparison may be done as a quantitative and qualitative assessment and may include an assessment of the impacts.

Quantitative Assessment

15. The quantitative changes between the modified development and the development approved under the original consent are summarised in the table below:

Feature	Approved Development	Proposed Modification	Change from approved
Building Height (Building C i.e. area subject to modification)	17.8m	20.7m	+ 2.9m (16.3% increase)
Height in storeys	2 storeys – 6 storeys	2 storeys - 6 storeys	No change
Total roof area that protrudes beyond the LEP height plan	0.8%	4.1% of total site	+3.3% increase
Gross Floor Area	17,077m2	17,383m2	+ 306m2 (1.79% increase)
Building footprint	38%	38%	No change
Number of Dwellings	127	131	+ 4 dwellings (3.1% increase)
Solar access	98/127 - 77%	98/131 – 74.8%	- 2.2% decrease
Cross ventilation	113/127 – 89%	114 / 131 – 87%	- 2% decrease
Car Parking	251 spaces total	251 spaces total	No change
Bicycle Parking	39 spaces total	39 spaces total	No change
Communal Open Space	5,380m2 (33% of site area)	4,930m2 (30.4% of site area)	- 450m2
Deep Soil Zone	3,035m2	3,009m2	No physical change. Correction in calculation to remove substation from deep soil calculation

16. The parties submit and I accept that the proposed amendments result in a minor reduction of 128m² of communal open space from the roof top, and the ground floor space where the new exhaust shafts are proposed to be located. The remainder of the reduction is the result of a recalculation and not due to physical amendments.

17. The fundamental design elements of the original consent were centred around the maintenance of ground plane communal areas, building separation, retention of trees and through-site lines. The modification application seeks to convert “surplus” communal open space into residential floor space through the site, and to increase amenity of the existing communal open space. The modification proposes to locate the available yield at the top of buildings, in the less sensitive areas of the site, while maintaining the vision of the original consent.

Qualitative Assessment

18. The qualitative changes between the modified development and that originally approved include:

1. Transformation of one of three flexible turf areas (in the north) into a pool facility, with associated BBQ facilities and seating.

2. Minor redesign of the central landscaped area to include three smaller, more discreet pockets of turfed lawn with integrated seat benches and shade planting, as opposed to a larger zone.

3. Increase of BBQ facilities (from 1 to 2 BBQ facilities) in the western elevated section.

4. Amendments to Building C by provision of additional residential dwellings and part-storey to Level 5.

5. Minor façade amendments.

6. Amendments to basement layout and parking configuration, and allocation of services and waste, including the addition of a plant room associated with the pool.

7. Addition of ventilation shafts. The parties note these will be obscured by landscaping along the site boundary which will limit their visual bulk and reduce any perceived impact they may have on the Ashbury Heritage Conservation Area.

19. The overarching intent for the site, as documented in the site-specific DCP, is to have a transition of building heights and scale, with the tallest buildings located along WH Wagner Oval (the Oval) and descending in height to Milton Street and the northern boundary. Importantly, this design intent is maintained through the modification application and therefore the overall development remains consistent with the original consent, as modified. Additionally, extensive view analysis, solar analysis, shadow assessments and site-line analysis undertaken by the applicant ensure that there will be no perceived impact from the additions proposed.

20. For those reasons, the parties submit and, I accept that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, and as subsequently modified.

Section 4.55(2)(b)

21. No consultation is required to be carried out by the Council under s 4.55(2)(b) of the EPA Act.

Section 4.55(2)(c) - Notification

22. The modification application was notified in accordance with cl 10 of Sch 1 of the EPA Act, s 107(2) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) and the Canterbury-Bankstown Community Participation Plan (CBCPP), satisfying s 4.55(2)(c) of the EPA Act.

23. A total of three submissions were received. The submissions raised concerns about the increase in building height, the reduction of communal open space, loss of privacy, solar access, car parking, traffic, overdevelopment, noise, odours, litter associated with the development, and inconsistency between documentation submitted, and general design.

24. The Council is satisfied that the proposed amendments will not generate an adverse impact on any adjoining or nearby properties, with only minor impact occurring to the adjacent WH Wagner Oval. Moreover, the relevant matters raised by the submitters have been satisfactorily addressed by the various amendments to the application and the additional information.

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

25. On 1 October 2023, the Sustainable Buildings SEPP came into force and applied to the modification application.

26. Schedule 1 of the Sustainable Buildings SEPP contains standards for energy and water use relative to their climate zones. A BASIX Certificate has been prepared for the modification application and has been updated for the amended modification application (Certificate 1123393M_09 located at Tab 5 of the amended modification application which shows the proposed development can satisfy the relevant energy and water standards).

27. A BASIX Certificate (Certificate No. 1123393M_04) was prepared to accompany the modification application (Class 1 Application, Tab 23). And an amended BASIX Certificate (Certificate No. 1123393M_09) prepared to accompany the amended modification application (amended modification application, Tab 5).

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

28. Chapter 6 of the Biodiversity and Conservation SEPP applies to the site as it is in the Sydney Harbour Catchment.

Section 6.6 Water quality and quantity

29. The proposed development ensures:

• the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial; and

• the impact on water flow in a natural waterbody will be minimised.

30. This is confirmed on:

• page 13 of the Stormwater Management OSD Calculation and Water Sensitive Urban Design' report prepared by IGS dated 10 October 2024 (included in the amended modification application documents).

Section 6.7 Aquatic ecology

31. The direct, indirect, or cumulative adverse impact on terrestrial, aquatic, or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development.

32. The development will not have a direct, indirect, or cumulative adverse impact on aquatic reserves.

33. The clearing of riparian vegetation is not proposed.

34. The development will not cause any erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody.

35. The development will not have an adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area, and there is not impact to aquatic ecology.

36. Relevant to this are:

• the amended architectural drawings prepared by SJB Architects (included in the amended application documents); and

• the 'Stormwater Management OSD Calculation and Water Sensitive Urban Design' report prepared by IGS dated 10 October 2024 (included in the amended modification application documents).

Section 6.8 Flooding

37. The proposed development is not on flood liable land.

38. The Council is satisfied that the stormwater design ensures that no localised flooding occurs within the site and that the peak stormwater discharge does not exceed pre-development stormwater discharge as per the 'Stormwater Management OSD Calculation and Water Sensitive Urban Design' report prepared by IGS dated 10 October 2024 (included in the amended modification application documents, Tab 6).

Section 6.9 Recreation and public access

39. The proposed development does not have any impact on access to and from natural waterbodies, watercourses, wetlands, or riparian vegetation. The site does not provide any existing points of public access, nor does it form part of the foreshore of a natural waterbody. Thus, the Court has to be satisfied there will be no impacts of the development on recreational land uses in the regulated catchment and will maintain or improve public access to and around foreshores without adverse impact on natural waterbodies, watercourses, wetlands, or riparian vegetation.

Canterbury-Bankstown Local Environmental Plan 2023 (LEP)

40. The following clauses of the LEP are required to be considered in determining the modification application:

Clause 2.1 - Land Use Zones

41. The site is zoned R4 High Density Residential. The proposed amendments retain the residential uses which are permissible with consent in the R4 zone.

Clause 4.3 - Height of Buildings

42. In accordance with the LEP, the site is governed by a number of building height controls. Specific to this modification, Building C has a mapped LEP maximum building height of 18m. As the site topography varies, the degree of exceedance also varies but the maximum proposed exceedance is 2.9m, reflecting a 16.3% departure from the LEP height of buildings development standard, under cl 4.3 of the LEP.

43. The variation is limited to the north-western corner and the uppermost level of Building C, as shown in DA plan DA2910 (Rev 13). The total roof area which exceeds the 18m height plane represents 537m² or 4.1% of the entire site (representing a 3.1% increase), as shown in DA plan DA2910 (Rev 13). In this regard, the non-compliance when assessed across the whole of the site is considered minor.

44. While the non-compliant component of the building results in a minor degree of additional overshadowing to the Oval on June 21^st (see shadow plans DA-3131 to DA-3139) the parties agreed that the extent of the overshadowing is minor and will not have an adverse impact on the amenity of the Oval.

45. Aside from the Oval, there will be no additional overshadowing beyond the site boundary, including the existing southern residential precinct. The proposed amendments will create minor additional overshadowing within the precinct however it remains compliant with the Apartment Desing Guide (ADG), and the parties are satisfied that any additional overshadowing will not have a detrimental effect.

Clause 4.4 - Floor Space Ratio (FSR)

46. The site is subject to a maximum FSR of 1.1:1. The development application, as amended, proposes an FSR of 1.07:1 and therefore complies with this standard.

Clause 5.10 - Heritage

47. The site is not identified as a heritage item nor is it located within a heritage conservation area. It is however located to the west of the Ashbury Heritage Conservation Area.

48. Aside from a minor materiality change to Building F, there are no amendments proposed at the interface of the site which would result in additional impacts to the heritage conservation area, beyond that which has already been approved and assessed in the original consent, as modified.

Clause 6.3 - Stormwater

49. The parties submit and I accept that the modification application:

• 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;

• includes on-site stormwater retention for use as an alternative supply to mains water, groundwater, or river water;

• avoids significant adverse impacts of stormwater runoff on the land on which the development is carried out, adjoining properties and infrastructure, native bushland and receiving waters, or if the impact cannot be reasonably avoided, minimises, and mitigates the impact;

• includes riparian, stormwater, and flooding measures; and

• incorporates a Water Sensitive Urban Design approval that protects and enhances water quality, minimises harmful impacts on the development and integrates stormwater management into the landscape.

50. Relevant to this is the Stormwater Management OSD Calculation and Water Sensitive Urban Design' report prepared by IGS dated 10 October 2024 (amended modification application, Tab 6).

Canterbury-Bankstown Development Control Plan 2023 (DCP)

51. Although the provisions of the DCP are not jurisdictional pre-requisites to the grant of modifying the consent the parties submit that the proposed amendments do not result in any change to the development's compliance with the provisions of the DCP.

Conclusion and orders

52. For the above reasons, I find that the parties’ decision is within power as required by s 34(3) of the LEC Act. I now dispose of the proceedings in accordance with the parties’ decision.

53. The Court notes that:

1. Pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 the applicant applied to the Council for an amendment to modification application No. DA-826/2020, which was originally granted by the Land and Environment Court on 23 November 2021 (Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714) in accordance with the following:

2. The amended modification application is not required to be lodged on the NSW Planning Portals pursuant to section 38(4) of the Environmental Planning and Assessment Regulation 2021.

3. The Applicant filed the amended modification application with the Court on the same date as this agreement.

54. The Court orders:

1. The applicant is to pay the respondent's costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,750.00.

2. The application is granted.

3. Development consent DA-826/2020, which was originally granted by the Land and Environment Court on 23 November 2021 (Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714) is modified in the terms set out in Annexure A.

4. Development consent which was originally granted by the Land and Environment Court on 23 November 2021 (Ashbury FMBM Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1714) is modified by the Court, as set out in Annexure B.

S Dixon

Senior Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 19 December 2024