BRAU Investments Pty Limited v Goulburn Mulwaree Council

[2022] NSWLEC 1211

Land and Environment Court

New South Wales

Medium Neutral Citation:

BRAU Investments Pty Limited v Goulburn Mulwaree Council [2022] NSWLEC 1211

Hearing dates:

Conciliation conference on 5 April 2022

Date of orders:

19 April 2022

Decision date:

19 April 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 0419/2021 for the construction of a multi dwelling housing development consisting of six attached townhouses and a seven lot community title subdivision, at 10 Ben Bullen Place, Goulburn, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a multi-dwelling residential development and community title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Goulburn Mulwaree Local Environmental Plan 2009, cll 2.6, 4.1, 4.1B

Land and Environment Court Act 1979, s 34

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

Texts Cited:

Goulburn Mulwaree Development Control Plan 2009

Category:

Principal judgment

Parties:

BRAU Investments Pty Limited (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
B Dyer (Solicitor) (Respondent)

Solicitors:
Foundation Law Group (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/16997

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0419/2021 for the construction of a multi dwelling housing development consisting of six attached townhouses and a seven lot community title subdivision (the proposal), at 10 Ben Bullen Place, Goulburn (Lot 156 in DP 248976) (the site), by Goulburn Mulwaree Council (the Council).

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 5 April 2022. I presided over the conciliation conference. The conciliation conference was conducted via Microsoft Teams.

3. One resident objector gave evidence at the commencement of the conciliation conference. Her property adjoins the site, and she is concerned that the proposal will result in amenity loss because the proposal does not comply with the rear setback numerical control of 6m in the Goulburn Mulwaree Development Control Plan 2009 (DCP 2009).

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties on the basis of additional information provided by the Applicant, including shadow diagrams to demonstrate how the proposal will impact solar access to neighbouring land. 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 development application.

5. There are preconditions to the exercise of power to grant development consent for the proposal, which are addressed by the parties in their Submission on Jurisdictional Matters filed on 5 April 2022. The Council filed a document responding to the objectors’ concerns (Annexure B).

Planning framework

6. The site is zoned R2 Low Density Residential pursuant to Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009), and multi dwelling housing is an innominate permissible use with consent in the R2 zone. The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

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

• To maintain the economic strength of commercial centres by limiting the retailing of food and clothing.

7. The site is not mapped under LEP 2009 as having a height of buildings or floor space ratio development standard.

8. Clause 2.6 of LEP 2009 provides that land may be subdivided, but only with development consent. The minimum lot size development standard under cl 4.1 of LEP 2009 does not apply to a community title subdivision, at sub-cl (4)(b). The minimum lot size for multi-dwelling housing in the R2 zone is 1,050m², at cl 4.1B of LEP 2009. The site has an area of 2,090m².

9. I accept the parties’ agreed submission, based on historical use and an inspection, that there is no evidence that the site is contaminated, as required by the mandatory terms of s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021.

10. DCP 2009, at Part 4 Principal Development Controls – Urban, includes a rear setback control of 6m for all residential development. There is no stated objective for the setback numerical controls under Part 4 of DCP 2009. The parties submitted that the applicable objectives are those for site planning, bulk, scale and density at section 4.1.1, as follows:

“Achieve a coherent site layout that provides a pleasant, attractive, manageable, resource efficient and sustainable living environment.

Ensure bulk and scale does not have an unacceptable impact on the streetscape and the character of the locality.

Higher density developments are located close to public transport shopping and community facilities.”

11. The rear setback of the proposal is 1.575m to the side elevation of one attached townhouse. The Council submitted that it is appropriate to be flexible in applying the setback numerical control, pursuant to s 4.15(3A) of the EPA Act, following an analysis of the shadow diagrams submitted by the applicant, because the Council is satisfied that the solar access to the adjoining properties meets the solar access control under section 4.1.7 of DCP 2009, which is in the following terms:

“Residential buildings shall be designed to ensure that the principal living spaces of the proposed dwelling, adjoining residential buildings, and at least 50% of their private open space, have at least three hours of sunlight between 9.00am and 3.00pm on 21 June (winter solstice).”

12. I accept the Council’s analysis that the proposal does not have unacceptable impact on the private open space of the properties to the rear of the site and that as a consequence, the proposal is consistent with the objectives for residential development under section 4.1.1 of DCP 2009.

Conclusion

13. I have considered the Submission on Jurisdictional Matters filed with the Court on 5 April 2022 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

14. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 0419/2021 for the construction of a multi dwelling housing development consisting of six attached townhouses and a seven lot community title subdivision, at 10 Ben Bullen Place, Goulburn, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

(Annexure A) (325105, pdf)

(Annexure B) (150186, pdf)

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Decision last updated: 19 April 2022