CPDM Pty Ltd v North Sydney Council

[2024] NSWLEC 1262

Land and Environment Court

New South Wales

Medium Neutral Citation:

CPDM Pty Ltd v North Sydney Council [2024] NSWLEC 1262

Hearing dates:

Conciliation conference on 10 May 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The Applicant’s written request, prepared by Gyde dated 12 March 2024, made pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013 to vary the height development standard in clause 4.3 of the North Sydney Local Environmental Plan 2013, is upheld.

(3) The appeal is upheld.

(4) Development Application No DA219/23, as amended, for the demolition of existing structures, tree removal and construction of a multi-dwelling housing development comprising 10, 3-storey dwellings with basement parking and associated site works at 7-9 Selwyn Street, Wollstonecraft, is determined by the grant of consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APLPICATION – multi-dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between 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

Environmental Planning and Assessment Regulation 2021, s 38

North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 6.2, ss 6.6, 6.7

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

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

Category:

Principal judgment

Parties:

CPDM Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Adams (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/319718

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by North Sydney Council of Development Application No DA219/23, seeking consent for the demolition of existing structures, tree removal and construction of a multi-dwelling housing development comprising 10, 3-storey dwellings with basement parking and associated site works at 7-9 Selwyn Street, Wollstonecraft.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 10 May 2024.

3. Prior to the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent.

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 April 2024.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [32].

7. The site is located within the R3 Medium Density Residential zone, according to the North Sydney Local Environmental Plan 2013 (NSLEP), in which development of the sort proposed is permitted with consent, and where consistent with the objectives of the zone that are:

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

•  To provide a variety of housing types within a medium density residential environment.

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

•  To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•  To provide for a suitable visual transition between high density residential areas and lower density residential areas.

•  To ensure that a high level of residential amenity is achieved and maintained.

8. The proposed development exceeds the height standard of 8.5m at cl 4.3 of the NSLEP, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the NSLEP in respect of the exceedance of those development standards.

9. The written request defines the exceedance to be 187mm in height above the 8.5m standard.

10. The written request asserts that compliance with the height standard is unreasonable or unnecessary in the circumstances of this case, as the objectives of the height standard are achieved, notwithstanding the non-compliance with the numerical height standard.

11. The objectives at cl 4.3 of the NSLEP are as follows:

(a)  to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b)  to promote the retention and, if appropriate, sharing of existing views,

(c)  to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d)  to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e)  to ensure compatibility between development, particularly at zone boundaries,

(f)  to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

(g)  to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone C4 Environmental Living.

12. On a careful reading of the written request, I accept and am satisfied that compliance with the standard is unreasonably or unnecessary for the reasons that follow:

1. The proposal steps down the topography in a manner that reflects the fall of the land, and observes complying setbacks such that the exceedance does not obstruct views beyond those obstructed by compliant areas of the development, but arranges built form to allow view corridors through and over the development.

2. As the exceedance is located towards the centre of the site, it does not impose shadow on existing dwellings, public reserves or streets. Instead, adjoining properties receive the required minimum duration of sunlight, being 3 hours to living areas and/or private open space in mid winter between 9am-1pm.

3. As the exceedance is essentially limited to the height of a parapet on Townhouse No 8, no privacy impact results. Furthermore, visual separation either conforms to the distances required or, where otherwise, mitigation measures are proposed in the form of screens, fences or landscape buffers.

4. The site adjoins an area of land zoned R4 High Density Residential, and the development, at three-storeys in height, lies between development of four-storeys to the east, and two-storeys to the west. The exceedance does not disturb the compatibility, nor contain or make possible floor space that might otherwise render the development incompatible or of a scale that is out of character with the area.

5. Finally, while the proposal is for three-storey development, the uppermost storey is recessed, with change in materials to enhance the appearance of two-storey development.

13. As I am satisfied the objectives of the height standard are achieved, I do not consider it necessary to set out the grounds on which the written request also asserts the height standard has been virtually abandoned.

14. However, I do accept, and am likewise satisfied that the written request sets out sufficient environmental planning grounds to justify the contravening of the height standard for the reasons set out in the written request:   

1. The variation in height is the result of the sloping topography, said to slope in the order of 4-6 degrees towards the south and west.

2. The stepped form of the development is consistent with the existing streetscape and adjoining development in particular.

3. The exceedance results in negligible shadow impact or view loss.

4. The proposal is consistent with the objects of the EPA Act; the objectives of the height standard and of the R3 zone.

15. Next, the written request states the proposed development is in the public interest because it is consistent with the objectives of the R3 zone inasmuch as it provides 10 x 3-bedroom apartments in a medium density residential development which provides variety when compared with the mix of units, villas, townhouses and single dwellings in the area. Furthermore, the scale and stepped form of the development provides a suitable visual transition between existing development without compromising the amenity of surrounding development. Finally, a high level of residential amenity is provided through landscaping, privacy screens, the locating and treatment of private courtyards and balconies, and in the general arrangement and form of the development that maintains view corridors for adjoining development, both through and over the development.

16. I note the Respondent is satisfied that the development is in the public interest because it is consistent with the objectives of the R3 zone, and the height standard, and agrees the written request should be upheld.

17. Likewise, I accept and am satisfied that the development as proposed is in the public interest because it is consistent with the objectives of the R3 zone, and the height standard. I do not understand there to be any reasons that concurrence under cl 4.6(5) of the SLEP should not be granted and so I am satisfied that the request to vary the height standard should be upheld.

18. While the site is not identified as a site of heritage significance, and is not located within a heritage conservation area, it is within the vicinity of two local heritage items in Milner Crescent. To the extent cl 5.10 of the NSLEP applies, the parties agree, as I do, that the proposed development does not affect the heritage significance of those properties.

19. Earthworks are proposed on the site. A Geotechnical Investigation, prepared by Geotechnique dated 10 January 2023 accompanies the development application and is nominated in Condition A1 of the agreed conditions of consent. When read together with Stormwater Management Plans prepared by ACOR Consultants, and the Detailed Site Investigation prepared by Geotechnique dated 2 February 2024, I have formed the view the proposal adequately addresses the provisions of cl 6.10(3) of the NSLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. The DA is supported by a Detailed Site Investigation (DSI) of a kind required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP), prepared by Geotechnique Pty Ltd dated 2 February 2024. I accept the conclusion of the DSI that the site is suitable for the proposed development, subject to recommendations that are incorporated in the agreed conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. The development application seeks consent for the removal of trees on the site that are assessed in an Arboricultural Impact Appraisal and Method Statement, and an Addendum to Arborist Report, both dated 28 February 2024 prepared by Naturally Trees.

22. A Tree Pruning Statement by the same author, dated 29 February 2024 also supports the development application, and records that no impact or works to trees on neighbouring properties is proposed, and pruning is confined to three trees owned by the Respondent.

23. The Respondent is satisfied that the extent of tree removal is acceptable when the provisions of Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) are understood.

24. As the site is located within the Sydney Harbour Catchment, Pt 6.2 of the Biodiversity SEPP applies to require satisfaction that the effect of the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and the impact of that flow will be minimised (subs 6.6(2)). On the basis of the onsite detention of water proposed in the Stormwater Management Plans, and reduction in area of impervious surfaces on the site as a result of development, I accept the flow of stormwater from the site is minimised and appropriate water quality controls have been adopted such that I am satisfied as to those matters at subs 6.6(2) of the Biodiversity SEPP.

25. I am also satisfied that the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves, consistent with s 6.7 of the Biodiversity SEPP. The proposal does not comprise clearing of riparian vegetation, does not abut a natural waterbody and will not impose sedimentation on a natural waterbody, nor any adverse impact on wetlands or rainforest of any kind.

State Environmental Planning Policy (Transport and Infrastructure) 2021

26. I note that the proposed development has been referred to the electricity supply authority in accordance with s 2.48(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP), and that responses confirm Ausgrid does not object to the proposed development.

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

27. The application is accompanied by a BASIX certificate (Cert No 1387729M_02 dated 27 March 2024) prepared by Bonnefin Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021.

28. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended Development Application from the provisions of Sustainable Buildings SEPP.

Conclusion

29. 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.

30. 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.

31. The Court notes that:

1. North Sydney Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA219/23 in accordance with the documents set out in Annexure B.

Orders

32. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The Applicant’s written request, prepared by Gyde dated 12 March 2024, made pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013 to vary the height development standard in clause 4.3 of the North Sydney Local Environmental Plan 2013, is upheld.

3. The appeal is upheld.

4. Development Application No DA219/23, as amended, for the demolition of existing structures, tree removal and construction of a multi-dwelling housing development comprising 10, 3-storey dwellings with basement parking and associated site works at 7-9 Selwyn Street, Wollstonecraft, is determined by the grant of consent subject to the conditions of consent at Annexure A.

T Horton

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 16 May 2024