Boundary Street Properties Pty Ltd v Burwood Council

[2024] NSWLEC 1668

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boundary Street Properties Pty Ltd v Burwood Council [2024] NSWLEC 1668

Hearing dates:

Conciliation conference on 19 September 2024

Date of orders:

23 October 2024

Decision date:

23 October 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1)   The Applicant is granted leave to rely on the amended documents listed in the Notation.

(2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3)   The appeal is upheld.

(4)   Development Application No 10.2023.55.1, for the demolition of existing structures and construction of an 8 storey residential flat building containing 51 apartments over 3 levels of basement parking for 62 car parking spaces, 21 motorbike spaces and 16 bicycle spaces, with ground level and rooftop communal open space and associated landscaping and site works on the land known as 19 Grosvenor Street & 18-20 Boundary Street, Croydon, is determined by the grant of consent, subject to the conditions of consent in Annexure 'A'.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Land and Environment Court Act 1979, s 34

Burwood Local Environmental Plan 2012, cll 4.3, 4.4, 4.6 6.1

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Housing) 2021, ss 145, 148

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.100

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Boundary Street Properties Pty Ltd (Applicant)
Burwood Council (First Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/238888

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal was lodged by Boundary Street Properties Pty Ltd (applicant) under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the deemed refusal by Burwood Council (Council) of development application number 10.2023.55.1 (DA). The DA, as amended, seeks consent for an 8 storey residential flat building containing 51 apartments and associated development at 19 Grosvenor Street & 18-20 Boundary Street, Croydon (site).

Conciliation and agreement between the parties

2. At the parties’ request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 September 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended to address various contentions, and subject to conditions.

3. 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 point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional statement received by the Court on 4 October 2024 and further advice received on 14 October 2024.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

4. Chapter 4 deals with remediation of land. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated.

5. The parties advise that the site has been used for residential purposes since subdivision and is unlikely to contain contaminated soils. The respondent is satisfied that the site is suitable for the proposed use and the requirements of s 4.6 have been met. I am also satisfied in relation to the matters raised in s 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. The site is located within the catchment of Iron Cove Creek, which flows into Iron Cove and Sydney Harbour. The parties advise that Part 6.2, concerned with development in regulated catchments, applies. . The parties’ jurisdictional statement includes a note from stormwater speciliasts which addressed relevant matters and allows me to make direct findings of satisfaction with regard to each of the matters at subs 6.6(2), 6.7(2) and 6.8(2). I can find directly that I am satisfied in regard to the matters at s 6.9(2) because the site does not affect public access to and from natural water baodies.

State Environmental Planning Policy (Transport and Infrastructure) 2021

7. Section 2.48, concerned with electricity infrastructure, applies as a consequence of the overhead electricity lines along the road reserve adjacent to the site. Council advises that the appropriate notice has been given to relevant electricity authority, and requested conditions have been adopted.

8. Section 2.100 also applies given the site is adjacent to a rail corridor. The parties advise that the relevant guidelines have been taken into consideration in the applicant’s acoustic report and that conditions of consent include requirements to ensure the relevant acoustic criteria will not be exceeded. On this basis I am satsifed in regard to s 2.100(3).

State Environmental Planning Policy (Housing) 2021

9. The parties jurisdictional statement traces the recent amendments to policy concerning the design of residential apartment development, such as that proposed here. The upshot of this is that Chapter 4 of State Environmental Planning Policy (Housing) 2021 applies to the DA.

10. In accordance with s 145, the DA has been referred to Burwood Design Review Panel. The parties advise that the DA complies with each of the non-discretionary development standards at s 148(2), relating to car parking, internal apartment areas and ceiling heights.

Burwood Local Environmental Plan 2012

11. The site is situated within R1 General Residential zone within Burwood Local Environmental Plan 2012 (BLEP). Development for the purpose of a residential flat building is permissible with consent in the zone.

12. The proposal complies with the floor space ratio but contravenes the applicable building height control. I will return to this matter below.

13. The property is mapped as Class 5 land under the Acid Sulfate Soils map. I accept the advice of the parties that as the proposed works on the property are not within 500 metres of an adjacent Class 1, 2, 3 or 4 land, cl 6.1 has no effect.

Height of building contravention

14. Clause 4.3, with the relevant Building Height Map, establishes a maximum building height standard of 26 m. The proposal, as amended, has a maximum building height of 28.8 m (roof over lift overrun), thus contravening cl 4.3.

15. As the DA was lodged by not finally determined prior to 1 November 2023, the former (pre 1 November 2023) version of cl 4.6 applies. In turn, pursuant to cl 4.6(2), development consent may be granted for development even though the development would contravene a development standard, provided the relevant preconditions can be met. Council is satisfied that they can be. Nevertheless in this instance, the Court needs to make its own findings in regard to them.

16. To open the door to the permissive powers of cl 4.6 the applicant has provided a written request seeking to justify the contravention of the building height standard (prepared by Planning Ingenuity and dated 2 August 2024). Further, a consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3).

17. There are two preconditional factors involved in cl 4.6(3). The first requires the consent authority to be satisfied that the applicant’s written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of cl 4.3, relating to building height, are as follows:

(a) to establish the maximum height of buildings to encourage medium density development in specified areas and maintain Burwood’s low density character in other areas,

(b) to control the potentially adverse impacts of building height on adjoining areas.

18. The first objective is, in part at least, the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) to be “explanatory of the purpose of the … development standard” (Baron at [32]). Objective (a) explains an intention behind the establishment of a maximum building height. It is to encourage medium density development in specified areas and lower density character in other areas. This objective is already achieved with the controls and related spatial mapping under cl 4.3 of BLEP. I also note that the written request re-affirms how the proposed development is consistent with this objective of providing for denser housing in appropriately located settings. To the extent necessary, the written request also demonstrates that the proposal would achieve this first objective of the standard. The written request also demonstrates that the proposal would achieve the second objective of the standard. This is by demonstrating that there are only limited building elements sitting above the relevant height (located mostly relatively central to the building) and that there would be no significant environmental impacts as a consequence of the contravention. The first Wehbe way has been established (the proposal would achieve the objectives of the standard notwithstanding the contravention). It follows that the first preconditional factor involved in cl 4.6(3) has been met.

19. The second preconditional factor involved in cl 4.6(3) would require the consent authority to be satisfied that the applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify the contravention. The written request has successfully achieved this with its convincing arguments that: (1) the contravention would not bring significant environmental impacts as a consequence of the contravention, (2) an adjacent building also contravenes the building height control and (3) the contravening elements are generally set back from the building edge, and there are relatively minor contraventions only at the building edge. I am satisfied with these arguments that there are sufficient environmental planning grounds to justify the contravention. In turn the second preconditional factor involved in cl 4.6(3) has been met.

20. I now turn to cl 4.6(4) of BLEP, and the question of whether the proposed development would be in public interest because it is consistent with the objectives of the contravened development standard and the applicable zones. I accept and adopt the written request’s arguments to satisfy myself that the development is consistent with the objectives of the contravened building height standard. I also find the proposed development is consistent with R1 General Residential zone objectives. These objectives are as follows:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

21. The provision of an additional 51 apartments clearly assists in providing for the housing needs of the community. This is consistent with the first zone objective. The apartment mix proposed involves 15 x one-bedroom, 25 x two-bedroom and 11 x three-bedroom apartments. This provides for a variety of housing types consistent with the second zone objective. The third zone objective does not relate to the proposal.

22. Together these findings mean I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the relevant zones.

23. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of BLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention. I find nothing of significance arises in regard to those matters.

24. The states of satisfaction required by cl 4.6 of the BLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height control.

Notification

25. The original DA and the proposed amendments were both placed on public exhibition. There were 21 submissions received by Council with respect to the original DA and 13 submissions were received in regard to the amended proposal. Council advises it has taken into consideration the submissions raised. I can also note here that I had the opportunity to hear lay submissions (in person and via AVL) from two individuals prior to the commencement of the conciliation. It is clear that consideration has been given to these submissions which is the extent of the jurisdictional test.

Conclusion

26. Based on the above reasoning, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

27. 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 proposal generally.

Notation

28. The Court notes that Burwood Council as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No 10.2023.55.1, in accordance with the following documents (items (1) to (13) which were filed with the Court on 6 September 2024, and items (14) to (15) which were filed with the Court on 18 September 2024):

1. Access Report, prepared by Vista Access Architects, dated 28 July 2024;

2. Acoustic Impact Statement, prepared by Acoustic Works, dated 2 August 2024;

3. Arboricultural Impact Statement, prepared by Redgum Horticultural Arboricultural & Horticultural Consultants, dated 2 August 2024;

4. Design Verification Statement, prepared by BKA Architecture, dated 2 August 2024;

5. Geotechnical Assessment, prepared by STS Geotechnics Pty Ltd, dated 26 July 2024;

6. Revision E Landscape Plans, prepared by Conzept Landscape Architects, dated 2 August 2024;

7. Revised Clause 4.6 Variation Statement for Height, prepared by Planning Ingenuity, dated 2 August 2024;

8. Town Planner Statement (Response to SOFAC), prepared by Planning Ingenuity, dated 2 August 2024;

9. Quality Surveyors Report (Capital Investment Value Report), prepared by Construction Consultants, dated 26 July 2024;

10. Schedule of Amendments, prepared by BKA Architects, dated 2 August 2024;

11. Stormwater Plans, prepared by S&C Consultants Pty Ltd, dated 2 August 2024;

12. Revised Traffic and Parking Assessment Report, prepared by Varga Traffic Planning Pty Ltd, dated 2 August 2024;

13. Amended Waste Management Plan, prepared by Dickens Solutions, dated August 2024.

14. Architectural Plans, prepared by BKA Architecture:

DRAWING No.	DRAWING DESCRIPTION	REV No.	DATE
A000	Cover Sheet	K	01/08/2024
A100	Basement 03	K	01/08/2024
A101	Basement 02	K	01/08/2024
A102	Basement 01	14	01/08/2024
A103	Ground Floor Plan	15	17/09/2024
A104	Level 1-3	M	17/09/2024
A105	Level 4-6	M	17/09/2024
A106	Level 07	M	17/09/2024
A107	Roof Plan	L	01/08/2024
A200	North-West Elevation	K	01/08/2024
A201	South-West Elevation	K	01/08/2024
A202	North-East Elevation	L	01/08/2024
A203	South-West Elevation	L	01/08/2024
A204	Finishes Schedule	07	01/08/2024
A300	Section A	03	01/08/2024
A301	Section B	01	01/08/2024
A700	Calculations Sheet	K	01/08/2024
A700B	Sun Eye – Plan	01	01/08/2024
A701	Sun Eye Diagrams	J	01/08/2024
A705	Height Plan Diagrams	01	01/08/2024

15. BASIX Certificate No 1359732M_03 dated 11 September 2024.

Orders

29. The Court orders:

1. The Applicant is granted leave to rely on the amended documents listed in the Notation.

2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No 10.2023.55.1, for the demolition of existing structures and construction of an 8 storey residential flat building containing 51 apartments over 3 levels of basement parking for 62 car parking spaces, 21 motorbike spaces and 16 bicycle spaces, with ground level and rooftop communal open space and associated landscaping and site works on the land known as 19 Grosvenor Street & 18-20 Boundary Street, Croydon, is determined by the grant of consent, subject to the conditions of consent in Annexure 'A'.

……………………….

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 23 October 2024