Byrne v Northern Beaches Council

[2022] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation:

Byrne v Northern Beaches Council [2022] NSWLEC 1207

Hearing dates:

Conciliation Conference on 4 February 2022 and 18 March 2022

Date of orders:

21 April 2022

Decision date:

21 April 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. 2020/1733, for the demolition of existing structure(s) and construction of a 5 storey shop top housing development with basement carparking accessed from Condamine Street, four (4) ground level retail shops, with 12 residential apartments above, associated stormwater infrastructure and landscape works on land legally described as Lot A DP 336220, Lot 1 in DP 796788, Lot 1 in DP 318879, Lot 2 in DP 796788, known as 332-338 Sydney Road, Balgowlah is granted consent subject to the conditions at Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs that are thrown away as a result of amending Development Application No. DA/2020/1733 in the amount of $5,000 payable within 28 days from the date of the Court making orders in accordance with this s 34 agreement.

Catchwords:

DEVELOPMENT APPLICATION: five storey shop top housing – amended plans – conciliation agreement – orders

Legislation Cited:

Architects Act 2003, cl 3

Contaminated Land Management Act 1997, Pt 3, Div 1

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3A, 50, 55

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.1, 6.4, 6.11, 6.12, 6.13, 6.16

Roads Act 1993, ss 138, 145

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

State Environmental Planning Policy (Infrastructure) 2007, cll 2.119, 45

State Environmental Planning Policy No 55—Remediation of Land

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:

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

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Ted Byrne (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Swabb Attorneys (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2021/274989

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the actual refusal of Development Application No DA/2020/1733 by the Northern Beaches Planning Panel. The development application that was refused sought consent for the demolition of existing structures and construction of five storey shop top housing with basement parking, four ground level shops and 14 residential apartments as well as associated stormwater and landscape works. Since the filing of the appeal with the Court, the development application has been amended to 12 residential apartments. The development is proposed at 332-338 Sydney Road, Balgowlah (Lot A DP 336220, Lot 1 in DP 796788, Lot 1 in DP 318879, Lot 2 in DP 796788).

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 4 February 2022. I presided over the conciliation conference. Following the conciliation, agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment: pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. 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 have formed this state of satisfaction for the following reasons:

1. By reference to the development application form filed, owner’s consent has been given to the Applicant for lodgement of the Development Application.

2. The development application was notified to adjoining and proximate properties from 12 to 26 February 2021. No submissions were received.

3. The development application is accompanied by an updated BASIX certificate to reflect the amended development application, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP Resilience and Hazards. The site does not constitute land declared to be an investigation area: Pt 3, Div 1 Contaminated Land Management Act 1997. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

5. The development application proposes works within the public road reserve of both Sydney Road and Condamine Street. Section 138(3) of the Roads Act 1993 (‘Roads Act’) requires consent of Transport for NSW (TfNSW) for works on a public road. Submission of such a works application is a requirement of the conditions of consent (Condition 15). The development application has been referred to TfNSW who confirm they have no objection to the development application.

6. As the development application is, in part, residential apartment development, the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide (ADG). I have reviewed the amended development application against these provisions, and I am satisfied that adequate regard has been given to the design quality principles at Sch 1 of SEPP 65, and the objectives specified in the ADG.

7. Clause 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires an application for residential apartment development to be accompanied by a statement by a qualified designer, defined by cl 3 as a person registered under the Architects Act 2003, and in a form set out at cl 50(1AB) of the EPA Regulation. The statement by the qualified designer must attest to certain things set out at cl 3A of the EPA Regulation, including attestations in respect of the design quality principles, and the objectives specified in the ADG for the relevant design criteria. A complying design verification statement prepared by the architect David Wolski (5297) accompanies the application.

8. The site is at the junction of Sydney Road and Condamine Street Sydney. Sydney Road is a classified road: s 145 of the Roads Act.

9. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP (TAI)) came into force on 1 March 2022. SEPP (TAI) transfers the provisions of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) to the new instrument. Clause 2.119 of SEPP Infrastructure applies to the development application as: it is for the purpose of residential accommodation; it is on land adjacent to the road corridor of a road with annual average daily traffic volume of more than 20,000 vehicles (Sydney Road); and the consent authority considers is likely to be adversely affected by road noise or vibration.

10. Further, as the development application is for the purpose of residential accommodation the consent authority must not grant consent to the development unless it is satisfied measures will be taken to ensure that the following noise levels are not exceeded —

1. in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

2. anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

11. I am satisfied that the development achieves compliance with these arrangements as described in the acoustic report, prepared by Acoustic Logic dated 1 December 2020.

12. Satisfying cl 45(2) of the then SEPP Infrastructure, the development application was referred to Ausgrid due to the proximity of underground power cables. Ausgrid confirmed by letter of 11 February 2021 that they have no objection to the development subject to requirements which form part of condition 2.

13. Manly Local Environmental Plan 2013 (LEP 2013) applies to the subject site and zones the land B2 – Local Centre. Shop top housing is a use permissible with consent in the zone.

14. Pursuant to cl 4.3 ‘Height of Buildings’ of the LEP 2013, the maximum height development standard for the site is 12.5m. The development application proposes a maximum height of 16.74m and relies on the provisions of cl 4.6 of LEP 2013 to vary the height of buildings development standard. The variation to the maximum height standard relates to the level four apartment roof and the lift overrun.

• For the reasons outlined in the cl 4.6 request of the LEP 2013, I am satisfied that the Proposed Development is consistent with the objectives of 4.3: Height of Buildings and that there are sufficient environmental planning grounds to support the variation proposed. In particular I am satisfied that the proposed development provides a building height that is consistent with the desired future character of the locality, minimises any disruption to public or streetscape views, and maintains adequate solar access.

• The unique constraints imposed by the location of the existing right of way and the required vehicular access and servicing requirements of the site provide sufficient environmental planning grounds as the design responds to these constraints by a redistribution of building mass. I am satisfied that these grounds are tied to the variation of the floor spaces standard and are sufficient in this instance.

• I find that the objectives of the development standard are achieved despite the breach, and the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP 2013. I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i). It follows that strict compliance with the development standard in cl 4.3 of LEP 2013 is both unreasonable and unnecessary: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [44]-[48].

• I also accept that the Proposed Development will be in the public interest because it is consistent with the objectives of the B2- Local Centres zone and the objectives of the provision despite the breach of cl 6.16 of LEP 2013. Further, I am satisfied that the Applicant’s written request adequately addresses the matters required to be demonstrated by subcl (3) of cl 4.6 in LEP 2013.

• The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the development standard does not raise any matter of significance for State or regional environmental planning given the nature of the development, and there is no public benefit in maintaining the standards on the facts of this case.

15. Pursuant to cl 4.4 of LEP 2013, the maximum floor space ratio (FSR) for building on the site is 2:1. The proposed development has an FSR of 2:1, complying with the FSR standard.

16. The site is identified on the maps in LEP 2013 as located in Class 5 Acid Sulfate Soils. Clause 6.1 of the LEP 2013 applies. The development application proposes no ‘works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) where the water table is likely to be lowered by 1m AHD on adjacent Class 1, 2, 3 or 4 land’. The clause is satisfied.

17. Clause 6.4: Stormwater Management in LEP 2013 applies to the land. The amended development application is accompanied by stormwater plans which includes the provision of an onsite detention tank and demonstrate that the design will avoid adverse impacts on adjoining properties. The precondition at cl 6.4(3) of LEP 2013 is satisfied.

18. Clause 6.16 of LEP 2013 mandates that at least 25% of the gross floor area (GFA) of buildings in the B2 Local Centre zone will be used as commercial premises. The proposed development has a total GFA of 1467m², thereby requiring a minimum commercial floor area of 366.75m² to comply with cl 6.16 of LEP 2013.The proposed development has a total commercial floor space of 328m² and relies on the provisions of cl 4.6 of LEP 2013 to vary the development standard.

• For the reasons outlined in the cl 4.6 request of the LEP 2013, I am satisfied that there are sufficient environmental planning grounds to support the variation proposed. In particular I am satisfied that the unique constraints imposed by the location of the existing right of way and the required vehicular access and servicing requirements of the site provide sufficient environmental planning grounds. I am satisfied that these grounds are tied to the variation of the standard for provision of ground floor commercial premises and are sufficient in this instance.

• Further, I find that the objectives of the development standard at cl 6.16 of LEP 2013 are achieved despite the breach, and the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP 2013. I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i). It follows that strict compliance with the development standard in cl 4.3 of LEP 2013 is both unreasonable and unnecessary: Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48].

• As noted in the preceding I am satisfied that the Proposed Development will be in the public interest because it is consistent with the objectives of the B2- Local Centres zone and that the concurrence of the Secretary can be assumed.

19. Clause 6.11 of the LEP 2013 Active Street frontages applies to the land on the Active Street Frontages Map. The subject site is identified on the relevant map. As required by cl 6.11(3) of LEP 2013, I am satisfied that the proposed development will have an active street frontage as the premises on the ground floor of the building facing the street are proposed to be used for retail premises.

20. I am satisfied that the requirements of cl 6.12(1) Essential Services in LEP 2013 are met, and that essential services and access are available to the proposed development.

21. In determining the development application, I have given consideration to the listed matters at subcl (4) of cl 6.13 Design Excellence in LEP 2013, and I am satisfied that the proposed development exhibits design excellence. The precondition at cl 6.13(3) of LEP 2013 is satisfied.

5. 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)).

6. 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 EPA Act.

7. The Court notes:

1. That Northern Beaches Council as the relevant consent authority has agreed, under cl 55(1) of the EPA Regulation, to the applicant amending the development application DA/2020/1733.

2. That the Respondent has uploaded the amended development application on the NSW planning portal on 1 April 2022.

3. That the applicant filed the amended development application with the Court on 1 April 2022.

8. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 2020/1733, for the demolition of existing structure(s) and construction of a 5 storey shop top housing development with basement carparking accessed from Condamine Street, four (4) ground level retail shops, with 12 residential apartments above, associated stormwater infrastructure and landscape works on land legally described as Lot A DP 336220, Lot 1 in DP 796788, Lot 1 in DP 318879, Lot 2 in DP 796788, known as 332-338 Sydney Road, Balgowlah is granted consent subject to the conditions at Annexure A.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that are thrown away as a result of amending Development Application No. DA/2020/1733 in the amount of $5,000 payable within 28 days from the date of the Court making orders in accordance with this s 34 agreement.

………………………………..

D Dickson

Commissioner of the Court

Annexure A (404922, pdf)

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Decision last updated: 21 April 2022