BPG Holdings (NSW) Pty Ltd v Northern Beaches Council

[2024] NSWLEC 1046

Land and Environment Court

New South Wales

Medium Neutral Citation:

BPG Holdings (NSW) Pty Ltd v Northern Beaches Council [2024] NSWLEC 1046

Hearing dates:

Conciliation Conference on 20 October, 20 December 2023

Date of orders:

14 February 2024

Decision date:

14 February 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay Respondent’s costs in the agreed amount of $10,000 payable within 21 days of the date of these orders as a result of the amendment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) Development application DA2023/0045, as amended, for the demolition of existing structures and excavation and groundworks and construction of 3 storey seniors living development comprising 6 self-contained independent living units across 2 buildings including single basement level carparking and associated landscaping and civil works at 36 Bardo Road, Newport, is determined by grant of consent, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – seniors living development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Pittwater Local Environmental Plan 2014

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004

Northern Beaches Community Participation Plan 2019

Category:

Principal judgment

Parties:

BPG Holdings (NSW) Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
C Gough (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Storey & Gough (Respondent)

File Number(s):

2023/135454

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Northern Beaches Council (the Council) of DA2023/0045 (the Development Application) for demolition of existing structures and construction of a 3 storey seniors living complex of 6 living units and 12 basement vehicular parking spaces (the Proposed Development) at 36 Bardo Road, Newport, NSW, known as Lot 34 DP 4689 (the Site).

2. 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 site and at the Council’s chambers. I presided over the conciliation conference.

3. At the conciliation conference, and as a result of further without prejudice discussions, the parties reached an in principal agreement which addressed the Council’s contentions and was satisfactory to the parties. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38of the Environmental Planning and Assessment Regulation 2021. The Council determined that the amendment was not minor and the Applicant agreed to pay the Council’s costs thrown away as a result of the amendment in the sum of $10,000 pursuant to s 8.15(3) EPA Act. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the seniors living Proposed Development on the Site with conditions.

4. The agreed position involved the following changes to the Development Application:

“a. introduction of x2 visitor parking spots in basement associated no parking turning area;

b. courtyard added between apartments 01 & 02 and 04 & 05 with associated landscaping;

c. reduction in bedrooms for apartment 01 and 04;

d. internal reconfiguration of apartment layouts;

e. larger kitchen windows added;

f. new screens added to apartments 04 & 06;

g. planter added to apartment 05 terrace;

h. rear building stepped to increase setback to bedroom areas; and

i. amendments to roof shape to suit change in building footprint.”

5. The parties’ experts agree that all Contentions raised in the Statement of Facts and Contentions filed on 29 May 2023 (SOFC) have been resolved by the preparation of:

1. amended plans and documents listed below under Notations as central to the signed s 34 agreement; and

2. agreed conditions of consent set out in Annexure A.

6. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided to the Court on 6 February 2024. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

Jurisdictional matters:

8. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters, largely quoted from the parties Statement as follows.

State Environmental Planning Policy (Housing) 2021

“17. Pursuant to s 79(c) the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to land zoned R2 Low Density Residential. As such, development for the purposes of ‘seniors housing’ may be carried out with consent pursuant to s 81.

18. The Development Application complies with the majority of general development standards as raised by s84 (see page 9 of Statement of Environmental Effects prepared by DMPS dated December 2022 at Tab 3 of Class 1 Application).

19. In relation to s 84 (2)(c)(iii) building plane standard, the Applicant has prepared a clause 4.6 written variation request prepared by DMPS at Tab 6 of the s34 Agreement Bundle. The Court is satisfied that the Clause 4.6 Request is well founded and that the variation to the building plane control is acceptable for the reasons set out in the request.

…

20. Pursuant to s 85, the Development Application complies with the requirements of Schedule 4 (see Updated Access Report prepared by Lindsay Perry Access dated 3 December 2023).

21. The site is located at a distance slightly above the 400m requirement for access to be provided to a transport service which meets the requirements of s 93(2). The Applicant has prepared a clause 4.6 written variation request prepared by DMPS detailing how the requisite access requirements have been otherwise met and confirming consent should be granted.

…

c. The parties agree that the proposed development is consistent with the objectives of the development standard, the zone objectives and that the proposed development is in the public interest [which is accepted by the Court].

d. In conjunction with the Applicant’s clause 4.6 request, the following documents have also been prepared to demonstrate how access for future senior residents to facilities and services will be facilitated:

i. Footpath Upgrade Works Plan prepared by Acor dated 9 November 2023;

ii. Access Support Letter prepared by Vista Access Architects dated 27 November 2023; and

iii. Arborist Support Letter prepared by Jackson Nature Works dated 23 November 2023.

e. The amendments made to the Development Application address the matters raised by the Respondent at contention 3 in relation to access to facilities and services. The parties agree appropriate conditions of consent have been included to ensure appropriate access to services pursuant to s93 is realised.

22. Pursuant to s 97, the Seniors Living Policy: Urban Design Guideline for Infill Development has been considered (see page 19 of Statement of Environmental Effects prepared by DMPS dated December 2022 at Tab 3 of Class 1 Application).

23. Pursuant to s 98, the design of the Development Application meets the requirements of the Division 6 Design Principles. Specifically, the Applicant has now incorporated larger kitchen windows to facilitate greater observation of public areas and routes of approaching apartment’s front doors and x2 visitor parking spaces to enable convenient access and parking for residents and visitors (see updated Architectural Plans prepared by PopovBass).

24. The Development Application complies with the majority of non-discretionary development standards for independent living units as raised by s108 (see page 22 of Statement of Environmental Effects prepared by DMPS dated December 2022 at Tab 3 of Class 1 Application and updated Architectural Plans prepared by PopovBass).”

9. I have also considered the jurisdictional issues raised by the following Environmental Planning Instruments as set out in the parties Statement and am satisfied that no jurisdictional impediments arise preventing the Court from allowing the appeal and granting consent to the Development Application, as amended.

State Environmental Planning Policy (Transport and Infrastructure) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

Pittwater Local Environmental Plan 2014

10. The Development Application was notified in accordance with the Respondent’s Community Participation Plan between 3 February 2023 and 17 February 2023. The Court heard from neighbouring objectors on site and written submissions provided to the Council were before the Court. The parties have considered the submissions and are satisfied that the amended Plans and conditions have regard to those submissions where reasonable. The Court is satisfied that the neighbouring objectors have been accorded procedural fairness.

Conclusion:

11. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

12. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notations:

13. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application DA2023/0045 in accordance with the documents below, which were filed with the Court on 6 February 2024.

Plan Name	Drawing number	Revision	Date	Prepared by
Updated Architectural Plans
Title Page	0628-DA100	08	7 November 2023	PopovBass
Demolition Plan	0628-DA101	06	7 November 2023	PopovBass
Site Analysis Plan	0628-DA102	06	7 November 2023	PopovBass
Site Plan	0628-DA103	07	7 November 2023	PopovBass
Basement Plan	0628-DA104	07	7 November 2023	PopovBass
Ground Floor Plan	0628-DA105	07	7 November 2023	PopovBass
Level 01 Plan	0628-DA106	07	7 November 2023	PopovBass
Roof Plan	0628-DA107	07	7 November 2023	PopovBass
Post Adaptation Plans	0628-DA108	07	7 November 2023	PopovBass
West and East Elevations	0628-DA109	07	7 November 2023	PopovBass
North and South Elevations	0628-DA110	07	7 November 2023	PopovBass
Sections AA and BB	0628-DA111	07	7 November 2023	PopovBass
Sections CC and DD	0628-DA112	08	7 November 2023	PopovBass
GFA / Landscape / Private Open Space Calculations	0628-DA113	08	7 November 2023	PopovBass
Shadow Diagram	0628-DA114	08	7 November 2023	PopovBass
Shadow Diagram: 12:00pm June 21	0628-DA115	08	7 November 2023	PopovBass
Shadow Diagram: 3:00pm June 21	0628-DA116	08	7 November 2023	PopovBass
Sun Eye Diagrams June 21 Existing and Proposed	0628-DA117	08	7 November 2023	PopovBass
Sun Eye Diagrams June 21 Existing and Proposed	0628-DA118	08	7 November 2023	PopovBass
Sun Eye Diagrams June 21 Existing and Proposed	0628-DA119	08	7 November 2023	PopovBass
Exterior Palette and 3D Perspectives	0628-DA120	06	7 November 2023	PopovBass
Detail Sections	0628-DA121	06	7 November 2023	PopovBass
Sun Eye Diagrams June 21 – 9:00-9:40am	0628-DA122	06	7 November 2023	PopovBass
Photomontage and Height Plane Diagrams	0628-DA123	05	7 November 2023	PopovBass
Excavation Diagrams	0628-DA124	05	7 November 2023	PopovBass
Updated Stormwater Plans
Details, Notes & Legend	D1	D	7 December 2023	NY Civil Engineering
Stormwater Management Plan	D2	D	7 December 2023	NY Civil Engineering
Stormwater Management Plan	D3	D	7 December 2023	NY Civil Engineering
First Floor Plan	D4	D	7 December 2023	NY Civil Engineering
Roof Plan	D5	D	7 December 2023	NY Civil Engineering
Discharge Pipe Long section	D6	D	7 December 2023	NY Civil Engineering
Sediment Control Plan	D7	D	7 December 2023	NY Civil Engineering
Stormwater and Sediment Control Details	D8	D	7 December 2023	NY Civil Engineering
Stormwater Details	D9	D	7 December 2023	NY Civil Engineering
Updated Landscape Plans
Landscape Plan	238.23(22)/364’A’	A	6 November 2023	iScape Landscape Architecture
Footpath Assessment Plans
Cover Sheet and Notes	P1	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Footpath Location Plan	P2	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Footpath Detail Plan Sheet No.1	P3	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Footpath Detail Plan Sheet No. 2	P4	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Footpath Detail Plan Sheet No. 3	P5	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Footpath Detail Plan Sheet No. 4	P6	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Footpath Long Section	P7	D	9 November 2023	ACOR Consultants (CC) Pty Ltd
Reports
Clause 4.6 Request (FSR) prepared by DMPS dated 11 December 2023
Clause 4.6 Request (building envelope) prepared by DMPS dated11 December 2023
Clause 4.6 Request (access to services) prepared by DMPS dated11 December 2023
Hydraulic Engineer Design Statement prepared by itm Design dated 6 June 2023
Updated Access Report prepared by Lindsay Perry dated 3 December 2023
Geotechnical Report prepared by White Geotechnical Group Pty Ltd dated 5 July 2023
Updated Arborist Letter in support of footpath works prepared by Jackson Nature Works dated 23 November 2023
Updated Access Letter in support of footpath works prepared by Vista Access Architects dated 27 November 2023
Updated BASIX Certificate 1366698M_02 dated 14 December 2023

Orders:

14. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs in the agreed amount of $10,000 payable within 21 days of the date of these orders as a result of the amendment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. Development application DA2023/0045, as amended, for the demolition of existing structures and excavation and groundworks and construction of 3 storey seniors living development comprising 6 self-contained independent living units across 2 buildings including single basement level carparking and associated landscaping and civil works at 36 Bardo Road, Newport, is determined by grant of consent, subject to the conditions of consent in Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 14 February 2024