Atlen Construction Pty Ltd v Hunter's Hill Council

[2019] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation:	Atlen Construction Pty Ltd v Hunter’s Hill Council [2019] NSWLEC 1328
Hearing dates:	Conciliation conference on 1 May 2019; 4 July 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans listed in condition 2 in Part A of the conditions of consent contained at Annexure “A”. (2)   The Applicant’s written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the height standard imposed by clause 4.3 of the HHLEP is upheld. (3)   The appeal is upheld. (4)   Development application no. DA2017/1199 for demolition of existing structures and construction of a new shop top housing development including basement parking, and associated landscaping at 233-235 Victoria Rd, Gladesville, is approved subject to the conditions contained at annexure “A.”
Catchwords:	DEVELOPMENT APPEAL – conciliation conference – residential apartment development – shop top housing – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Category:	Principal judgment
Parties:	Atlen Construction Pty Ltd (Applicant) Hunter’s Hill Council (Respondent)
Representation:	Counsel: S Duggan SC (Applicant) M Staunton (Respondent)   Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/279902
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2017-1199 which seeks approval for the demolition of all existing improvements/structures on the site for the erection of a shop top housing development comprising residential apartments, retail shops and commercial tenancies, lower ground floor storage and residential lobby, 5 levels of apartments and base car parking.

2. The site is legally described as follows Lots 7, 8 & 9 in DP17868 and Lot A in DP333735 at 233-235 Victoria Road, Gladesville.

3. The site is adjacent to a property that is not the subject of the application, but for which future provision has been made in the layout of the basement car parking to ensure the site is not isolated by the proposed development.

4. To the rear of the site is a Shareway which is composed of a combination of public road and various rights of way, including to the subject site, and which provide informal pedestrian and vehicular access between Victoria Road, Cowell Road and Massey Street.

5. The site is zoned B4 Mixed Use under the provisions of the Hunters Hill Local Environmental Plan 2012 (HHLEP) which permits shop top housing with consent, and is within Heritage Conservation Area C3 (Gladesville Village).

6. 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 1 May 2019, after which the conciliation conference was adjourned to allow the applicant to prepare amended plans. The conciliation conference was convened again on 4 July 2019. I presided over the conciliation conference.

7. At the conciliation conference on 4 July 2019, 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 July 2019.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, including a written request made pursuant to cl 4.6 of the HHLEP seeking a variation of the development standard for the height of buildings set out in cl 4.3 of the HHLEP.

10. The parties explained to me during the conference as to how the requirements of the HHLEP have been satisfied in order to allow the Court to make the agreed orders at [21].

11. As the proposed development is a residential apartment development, the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) apply. I am satisfied that a design verification statement has been prepared by a qualified designer, Architect Paul Godsell Reg. No. 6726, and in a form that is consistent with cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000.

Written request to vary development standard

12. Clause 4.6(4) of the HHLEP establishes certain preconditions that must be satisfied before the Court, exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13] (Initial Action)).

13. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard at the site, prepared by Hamptons Property Services, dated 4 July 2019.

14. Relevantly, the site is located between zones for the purposes of the height of buildings, consisting of a maximum height of 19m to the portion fronting Victoria Road, and a maximum height of 16m to the portion of the site fronting the Shareway to the rear. The site falls steeply from the Victoria Road frontage, to the Shareway frontage and both frontages are splayed.

Height of building at 233-235 Victoria Road

15. I am satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary for the following reasons:

1. The height of the proposal at the Victoria Road frontage, and the Shareway frontage is compliant with the height of building development standard found in cl 4.3 of the HHLEP.

2. The contravention of the development standard is largely caused by the lift and stair core which provide access to the communal open space with a modest provision of shading and shelter. The extent of the non-compliance is measured to be 0.6m.

3. The proposal is consistent with the objectives of the standard notwithstanding the non-compliance with the standard, and as there is no adverse impact caused by the breach of the standard in relation to solar access, privacy or the obstruction of views.

16. I am also satisfied that the written request made under cl 4.6 of the HHLEP adequately establishes sufficient environmental planning grounds that justify the breach in the height of building development standard by demonstrating that the non-compliance provides no additional floor space to the development, imposes no adverse solar access, privacy or obstruction of view impacts on neighbouring properties and is setback such that it creates no visual impact on the streetscape and is only likely to be visible from a distance.

17. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard as the proposed development comprises a mix of retail and residential uses that are compatible, including three retail shops to the Victoria Road frontage will help to maximise the levels of pedestrian and business activity, and smaller retail tenancies to the Shareway frontage will also create pedestrian activity, passive surveillance and the like.

18. 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.

19. 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.

20. 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.

Orders

21. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to rely on the amended plans listed in condition 2 in Part A of the conditions of consent contained at Annexure “A”.

2. The Applicant’s written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the height standard imposed by clause 4.3 of the HHLEP is upheld.

3. The appeal is upheld.

4. Development application no. DA2017/1199 for demolition of existing structures and construction of a new shop top housing development including basement parking, and associated landscaping at 233-235 Victoria Rd, Gladesville, is approved subject to the conditions contained at annexure “A.”

……………………………….

Tim Horton

Commissioner of the Court

Annexure A (132 KB)

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Decision last updated: 12 July 2019