Bella Ikea Glebe Pty Ltd v The Council of the City of Sydney

[2022] NSWLEC 1552

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bella Ikea Glebe Pty Ltd v The Council of the City of Sydney [2022] NSWLEC 1552

Hearing dates:

Conciliation conference held on 12 September 2022, final agreement filed 1 September 2022

Date of orders:

12 October 2022

Decision date:

12 October 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/2021/1103 and rely on the amended plans and documents listed at Annexure B.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $9,000.00.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA/2021/1103 (as amended) for the demolition of the existing building and construction of a new four level boarding house containing 9 boarding rooms and facilities, at 24 Grose Street, Glebe, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – cl 4.6 written request – height of buildings – motorcycle parking – 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 2000, cl 55

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 4.3, 4.6, 5.10, 6.21, 7.14, 7.15

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 28, 29, 30, 30A

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category:

Principal judgment

Parties:

Bella Ikea Glebe Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2021/320479

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/2021/1103 (the DA) by The Council of the City of Sydney (the Respondent). The DA sought consent for the demolition of an existing single-storey building, and the construction of a four-storey boarding house at 24 Grose Street, Glebe (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 September 2022. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter was conducted by Microsoft Teams.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Whilst the amended DA remains similar in many aspects as the original proposal, a series of design changes have cumulatively resolved the contentions raised by the Respondent, which in turn related primarily to design excellence, excessive building height, inaccurate calculation of floor space ratio (FSR), inadequate building setbacks, tree removal and poor internal amenity, amongst other contentions.

6. Of relevance, the amended DA has been reconfigured to result in a height, bulk and scale that is consistent with the surrounding context and includes improved architectural expression and materials. Proposed spaces on the ground floor have been reconfigured, including the removal of a retail space and the provision of a communal indoor room. A rooftop communal open space has been introduced. The total gross floor area has been calculated accurately and is consistent with the applicable FSR controls. A minor exceedance of the applicable height of building control is evident in the amended DA, however this is in a form and to a degree that the parties agree is able to be supported.

7. 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 amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. Additionally, the DA seeks consent to remove a tree situated on a neighbouring site and for minor reconstruction of a portion of a rear wall also situated on this neighbouring site. Owners’ consent has been provided for these works in a signed document provided to the Respondent.

10. The original DA was publicly notified from 6 October 2021 to 28 October 2021. Two submissions were received by the Respondent.

11. The amended DA was re-notified from 12 April 2022 to 22 April 2022. One further written submission was received in response to re-notification. The parties agree that the final design changes incorporated within the amended DA satisfactorily resolve the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

12. The parties agree, and I am satisfied, that the Sydney Local Environmental Plan 2012 (SLEP) is the relevant local environmental planning instrument. The site is zoned B2 Local Centre and the proposed development - characterised as boarding house development - is permissible with consent, and the amended DA achieves the objectives of the B2 zone.

13. The parties agree, and I am satisfied, that all applicable principal development standards of the SLEP have been met by the amended DA, with the exception of cl 4.3, Height of buildings, which establishes a maximum building height of 12m for the site.

14. In such an instance, cl 4.6(3) of the SLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

15. Clause 4.6(4) of the SLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

16. Additionally, cl 4.6(4)(b) of the SLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

17. Consequently, the Applicant has provided a written request (prepared by GSA Planning and dated August 2022) seeking to vary the height of building development standard.

18. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of building development standard for the following reasons.

1. The objectives of the SLEP B2 Local Centre land use zone include ‘…to allow appropriate residential uses so as to support the vitality of local centres.’ The parties agree, and I am satisfied, the amended DA meets these objectives.

2. The objectives of cl 4.3 of the SLEP, include seeking to ensure that the height of development is appropriate to the condition of the site and its context, and to ensure appropriate height transitions between new development and heritage items and heritage conservation areas. The parties agree, and I am satisfied, the amended DA meets these objectives.

3. The amended DA exceeds the height of building development standard of 12m by approximately 506mm, equating to an exceedance of 4.2% at its greatest extent.

4. The DA has been amended to resolve the contentions previously raised by the Respondent. The area of height exceedance represents a small portion of the primary parapet as it addresses the street. The height exceedance arises largely as a consequence of the site’s topography and since the design response maintains the prevailing street wall height. The height exceedance will not create any discernible impacts in terms of visual bulk, privacy, solar access and views, and design amendments ensure the resultant composition is cohesive and not intrusive when viewed from surrounding public vantages points.

19. The parties agree, and I am satisfied, that pursuant to cl 5.10 (Heritage conservation) of the SLEP, the Applicant has provided a heritage impact statement prepared by Mr Zoltan Kovacs dated February 2022, which assessed the property and any impacts upon heritage values and determined the proposal to be acceptable. I note the building is not a listed heritage item, nor located within a heritage conservation area, but is located immediately adjacent to a heritage conservation area.

20. The parties agree, and I am satisfied, that the necessary consideration has been given to those matters arising from cl 6.21 (Design excellence) of the SLEP. Significant refinement of the original DA has been made, with consideration given to those design attributes set out at cl 6.21(4) and following extensive discussions between the parties’ design experts.

21. The parties agree, and I am satisfied, that pursuant to cl 7.14 (Acid sulfate soils) of the SLEP, the site is not located within a mapped acid sulfate soils area.

22. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 7.15 (Flood planning) of the SLEP. The site is not situated within a mapped flood area.

23. The parties agree, and I am satisfied, that State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) remains an additional relevant environmental planning instrument. The parties agree the DA (as amended) is permissible under SEPP ARH pursuant to cl 28. Further, the DA complies with the ‘do not refuse standards’ set out at cl 29 of SEPP ARH, noting the exceedance of building height already addressed in this judgment.

24. At cl 30, SEPP ARH establishes a series of development standards for boarding house development. The amended DA complies with each of these standards with the exception of cl 30(1)(h), which requires that ‘…at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.’ The amended DA provides the requisite bicycle parking, but seeks to omit the one required motorcycle parking space.

25. In such an instance, cl 4.6(3) of the SLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

26. Clause 4.6(4) of the SLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

27. Additionally, cl 4.6(4)(b) of the SLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

28. Pursuant to cl 4.6 of the SLEP the Applicant has provided a written request (prepared by GSA Planning and dated May 2022) seeking to vary this development standard.

29. The parties agree, and I am satisfied, the Applicant’s written request adequately justifies the variance to the motorcycle parking development standard for the following reasons.

30. The amended DA provides seven bicycle parking spaces where the development standard requires the provision of a minimum of one space. The proposal seeks to omit the one required motorcycle parking space. The objectives of the SLEP B2 Local Centre land use zone include to ‘…maximise public transport patronage and encourage walking and cycling.’ The parties agree, and I am satisfied, the amended DA meets the objectives.

31. The site is situated within close proximity of significant public transport networks and is also close to extensive local services, commercial, retail, educational and recreational facilities, which reduces the likely demand for motorcycle parking on the site.

32. Further, the parties agree, and I am satisfied, that the amended DA meets the requirements of cl 30A of SEPP ARH and that the proposal is compatible with the character of the local area given that the four-storey built form is similar to the prevailing bulk and scale of surrounding developments.

33. The parties agree, and I am satisfied, that State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) remains an additional relevant environmental planning instrument. In satisfaction of the requirements of SEPP 55, the Applicant has produced the following reports and documents:

1. Stage 1 and 2 Site Contamination Investigation Report prepared by Geo-Environmental Engineering dated 24 February 2022.

2. Original Remedial Action Plan prepared by Geo-Environmental Engineering dated 25 February 2022.

3. Amended Remedial Action Plan prepared by Geo-Environmental Engineering dated 5 May 2022.

4. Interim Audit Advice prepared by Geo-Logix dated 6 May 2022.

34. The combined effect of these reports is to outline the identified level of contamination and provide an appropriate Remediation Action Plan, which has been reviewed and supported by an independent site auditor, concluding that the land is capable of remediation. Accordingly, I am satisfied the amended DA addresses the matters set out in cl 7 of SEPP 55.

35. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

36. The Court notes that:

1. The Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the DA to rely upon the documents referred to at Annexure B.

2. The amended DA was uploaded to the NSW Planning Portal on 4 and 30 August 2022.

3. The Applicant has filed the amended DA with the Court on 5 and 31 August 2022.

Orders

37. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/2021/1103 and rely on the amended plans and documents listed at Annexure B.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $9,000.00.

3. The appeal is upheld.

4. Consent is granted to Development Application DA/2021/1103 (as amended) for the demolition of the existing building and construction of a new four level boarding house containing 9 boarding rooms and facilities, at 24 Grose Street, Glebe, subject to the conditions of consent at Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

**********

Annexure A 

Annexure B 

Decision last updated: 12 October 2022