Barker Group NSW Pty Ltd v Albury City Council

[2023] NSWLEC 1259

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barker Group NSW Pty Ltd v Albury City Council [2023] NSWLEC 1259

Hearing dates:

Conciliation conference 11 April 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to amend Development Application No. 10.2021.38929.1 and rely on the amended plans listed at Condition 1 of Annexure A to this agreement.

(2) The appeal is upheld.

(3) Development Application No. 10.2021.38929.1 seeking consent for a three-storey residential flat building comprising 18 units and basement parking at Lot 23 in Deposited Plan 1251747 otherwise described as 557 Thurgoona Street, Albury, is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Residential flat building – conciliation conference – amended plans – orders made

Legislation Cited:

Albury Local Environmental Plan 2010, cll 2.3, 7.1, 7.6, 7.8

Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 29

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2000, cll 28, 30, Sch 1

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Australian Standard AS2870 (2011): Residential slabs and footings

Australian Standard AS1668.2 (2002): The use of ventilation and airconditioning in buildings - Ventilation design for indoor air contaminant control

Category:

Principal judgment

Parties:

Barker Group NSW Pty Ltd (Applicant)
Albury City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Reid (Respondent)

Solicitors:
Thomson Geer (Applicant)
Kell Moore Lawyers (Respondent)

File Number(s):

2022/359962

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by Barker Group NSW Pty Ltd (the Applicant) against the actual refusal of development application 10.2021.38929.1 (the application). The application seeks consent for the construction of a six-storey residential flat building containing twenty-  two residential units and carparking at 557 Thurgoona Street, Albury (Lot 23 in DP 1251747).

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 11 April 2023. I presided over the conciliation conference. Following the conciliation conference, the parties reached an agreement based on amended plans and documents, including the reduction of the number of residential units to 18. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. For the purposes of s 4.12 of the EP&A Act and s 23 of Environmental Planning and Assessment Regulation 2021 (EP&A Regulation), the owner’s consent to the making of the development application is included with the Development Application.

2. The development application was publicly notified on two separate occasions, firstly at lodgement from 25 November 2021 to 8 December 2021 and secondly, following the submission of amended plans and information, from 29 April to 11 May 2022. The submissions raised issues regarding character, overlooking, overshadowing, acoustic impacts, privacy concerns, bulk and scale, impact on nearby heritage conservation areas, traffic, and parking. In determining the development application, I have considered these submissions and accept the agreed position of the parties that the concerns raised have been addressed through the amended plans and proposed conditions of consent.

3. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002 (SEPP 65) applies as the development application is for the purposes of a residential flat building of three storeys which contains more than four dwellings. The development application is accompanied by a design verification statement as required by s 29 of the EP&A Regulation. Consistent with cl 28 of SEPP 65, in determining the application I have taken into consideration the design quality of the development when evaluated against the Design Quality Principles at Sch 1 of SEPP 65, and the Apartment Design Guide (ADG) as required by cl 28(2) of SEPP 65. I note that no design review panel has been constituted for the Albury Local Government Area.

4. Further, cl 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the ADG for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the design principles and the provisions of the ADG.

5. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EP&A Regulation, the development is BASIX affected development. The development application is accompanied by the required BASIX certificate.

6. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as the application proposes development within 5 metres (m) of an exposed overhead electricity power line: s.2.48(1)(b)(iii)) of SEPP TI. Further, s.2.48(2) of SEPP TI requires the consent authority to give written notice to the electricity supply authority inviting comments about potential safety risks and take into consideration any response to the notice that is received within 21 days after the notice is given. The application was referred to Essential Energy and a response was received. The requirements of Essential Energy are incorporated at Condition H8 of the Annexure A.

7. Chapter 4 (Remediation of land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the proposed development. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. The site was used a service station which was closed in July 2006 after being operational for approximately 42 years. Development Consent No. 10.2007.27691.1 for demolition and remediation of the site was granted on 28 May 2007. The previous 'service station' use is development for a purpose referred to Table 1 to the contaminated land planning guidelines (Guidelines), referred to in cl.4.6(4)(b) of the Resilience and Hazards SEPP. Accordingly, cl.4.6(2) requires the consent authority to consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the Guidelines before determining an application for consent to carry out development that would involve a change of use. The applicant has provided an updated preliminary site investigation from DM McMahon Pty Ltd dated 3 May 2023 (PSI).

8. The PSI concludes that that the identified potential contamination sources present a low risk to future residents for the proposed development, however management of potential vapour migration is recommended. This includes ensuring the slab is designed in such a way to have a high resistance to cracking (in line with engineering principles outlined in Australian Standard AS2870 (2011): Residential slabs and footings) and that all slab joints and penetrations are sealed. The car park is also required to meet Australian Standard AS1668.2 (2002): The use of ventilation and airconditioning in buildings - Ventilation design for indoor air contaminant control, for a minimum requirement for air ventilation. These management techniques will offer an effective barrier against potential vapour migration to make the site suitable for the proposed development. The recommendations are incorporated at Condition A15 of Annexure A. I accept that it is satisfied that the land is suitable for the purpose for which the development is proposed to be carried out under the application.

9. Albury Local Environmental Plan 2010 (LEP 2010) applies to the land which is zoned R1 General Residential. In determining the development application, I have considered the objectives of the zone under cl 2.3 of LEP 2010. Development for the purposes of a residential flat building is a nominated permissible use in the R1 General Residential zone.

10. As required by cl 7.1: Earthworks of LEP 2010, in granting development consent to the application I have considered the listed matters at subcl (3). The site is a former service station site with previous buildings demolished and removed. The site includes existing areas of hardstand and gravel surfaces, with the site drained to surrounding drainage infrastructure. The site is to be constructed with drainage provisions that collect and convey all stormwater from the site to the surrounding constructed drainage infrastructure. A preliminary civil drawing for the proposed drainage arrangements forms part of the application. None of the listed matters warrant the refusal of the application.

11. Pursuant to cl 7.6: Essential Services of LEP 2010 I am satisfied that the proposed development satisfies the clause as:

1. it will connect to Council's reticulated potable water supply which will be augmented as required;

2. it will connect electricity via an extended underground service;

3. it will connect Council's reticulated sewage infrastructure and will include extensions to the network and provision of new pumping infrastructure to Council's satisfaction;

4. it will connect to Council's stormwater drainage infrastructure in combination with new temporary on-site retention; and

5. it will provide suitable road access and intersections with adjoining roads.

12. Clause 7.8(2) of LEP 2010 requires the consent authority to consult with the Commonwealth body about the application if it is satisfied that the proposed development may penetrate the Obstacle Limitation Surface as shown on the Obstacle Limitation Surface Map for the Albury Airport. The overall height of the building is RL 172.60 which is well below the mapped approach and take off limitations which are RL 280 – 282 and RL 237 – 238 respectively.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

6. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application No. 10.2021.38929.1 and rely on the amended plans listed at Condition 1 of Annexure A to this agreement.

2. The appeal is upheld.

3. Development Application No. 10.2021.38929.1 seeking consent for a three-storey residential flat building comprising 18 units and basement parking at Lot 23 in Deposited Plan 1251747 otherwise described as 557 Thurgoona Street, Albury, is approved subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

22.359962 Annexure A (275007, pdf)

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Decision last updated: 31 May 2023