Crows Nest Project Pty Ltd ATF Crows Nest Development Sub Trust v North Sydney Council

[2023] NSWLEC 1320

Land and Environment Court

New South Wales

Medium Neutral Citation:

Crows Nest Project Pty Ltd ATF Crows Nest Development Sub Trust v North Sydney Council [2023] NSWLEC 1320

Hearing dates:

Conciliation conference on 20 March and 17 April 2023

Date of orders:

22 June 2023

Decision date:

22 June 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The Applicant’s written request under cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP) for contravention of the maximum height development standard imposed by cl 4.3 of NSLEP is well founded.

(3) The appeal is upheld.

(4) Development Consent is granted to Development Application 96/22 for the demolition of existing structures on the site and construction of a new five-storey shop-top housing development comprising two levels of basement car parking, ground floor commercial premises, four levels of residential apartments comprising 25 apartments, communal open space and public domain improvements at 82-90 Alexander Street, Crows Nest is approved subject to the conditions in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – shop top housing – variation to height of building development standard – impact on residential amenity - conciliation conference – agreement between parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, ss 34, 39

North Sydney Local Environmental Plan 2013, cll 2.3, 4.3, 4.6, 6.10

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

State Environmental Planning Policy Amendment (Land Use Zones) 2022

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 28, 30, 32

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

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

North Sydney Development Control Plan 2013

NSW Department of Planning and Environment, Apartment Design Guide, 2015

NSW Department of Planning, Industry and Environment, Planning Circular PS 20-002, 2020

Category:

Principal judgment

Parties:

Crows Nest Project Pty Ltd ATF Crows Nest Development Sub Trust (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2022/334267

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA No 96/2022 (the DA) by North Sydney Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA seeks consent for the demolition of existing structures on the site and construction of a new five‑storey shop‑top housing development comprising of two levels of basement car parking, ground floor commercial premises, four levels of residential apartments comprising 25 apartments, communal open space and public domain improvements on land known as 82‑90 Alexander Street, Crows Nest (the Site).

3. The DA was originally notified by the Respondent for a period of 14 days between 22 April and 6 May 2022. As a result of the notification of the Development Application, a total of 182 submissions objecting to the proposal were received. A further 25 submissions were received outside the notification period.

4. On 19 August 2022, the Applicant submitted additional information and a revised design to the Respondent via the NSW Planning Portal. On 29 August 2022, the amended plans were notified by the Respondent for a period of more than 14 days, ending on 30 September 2022. As a result of the notification of the amended plans, a total of 17 submissions objecting to the proposal were received. The main issues raised in these submissions were near identical to the issues raised in previous submissions received during the first notification.

5. On 11 November 2022, the Applicant commenced proceedings in Class 1 of the Land and Environment Court’s jurisdiction appealing against the Respondent’s deemed refusal of the Development Application.

6. 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 20 March 2023, and at which I presided. During conciliation, amended plans were prepared by the Applicant to address Council’s contentions.

7. The proceedings commenced onsite, with a number of resident objectors being heard. Following the onsite view, the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference and adjourned the conference to allow the further amended plans to be prepared so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent.

8. A signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 17 April 2023. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

9. 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, 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.

10. 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.

11. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following:

North Sydney Local Environmental Plan 2013

12. At the time the DA was lodged, the site was located within the B4 Mixed Use Zone, according to the North Sydney Local Environmental Plan 2013 (NSLEP). However, on 26 April 2023, the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, and State Environmental Planning Policy Amendment (Land Use Zones) 2022 resulted in the re-zoning of the land to MU1 Mixed Use Zone. Development for the purpose of shop top housing is permissible in the MU1 zone, as it was in the B4 zone.

13. Clause 2.3 requires the consent authority to have regard to the objectives for development in the zone prior to determining the Development Application. I am satisfied, and the parties agree, that the proposed development as amended is consistent with the objectives of the B4 – Mixed Use zone and objectives of the MU1 zone. The B4 zone objectives are:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To create interesting and vibrant mixed use centres with safe, high quality urban environments with residential amenity.

•  To maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels.

Exceedance of the Height Development standard

14. Clause 4.3 of the NSLEP prescribes a maximum building height of 16m. The DA proposes a maximum height of 19.71m. The Applicant has submitted a request to vary the development standard pursuant to cl 4.6 of the NSLEP.

15. The relevant objectives of the height standard, at cl 4.3 of the NSLEP are:

(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 E4 Environmental Living.

16. I am satisfied that the Written Request to vary the height standard, prepared by Gyde Consulting dated March 2023 and updated on 17 April 2023 (Written Request) demonstrates the matters required by cl 4.6(3) and that the proposal is in the public interest because it is consistent with the objectives of the standard and the objectives for development within the B4 zone in accordance with cl 4.6(4) of the LEP for the reasons stated below:

1. I am satisfied that the Request undertakes the necessary tests for consideration to justify the non-compliance including an assessment against the objectives of the zone and the height standard in the NSLEP as well as the consideration of environmental planning grounds.

2. When dealing with the objectives of cl 4.3 of the NSLEP, the Written Request includes an assessment of the relevant objectives. The height non-compliance does not contribute to any additional impact and the parties agree that the impacts of the development are minimised.

3. The Written Request states that compliance with the standard is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standard and B4 (now MU1) zone are achieved, notwithstanding the non-compliance with the numerical standard, for the reasons set out below:

1. The visual impact of the non-compliance is limited, noting the departure is small, and the non-compliant elements have been appropriately setback from the public domain, providing a suitable design response.

2. The building when viewed from the public domain will present as a four-storey podium to Alexander Street and a three-storey podium to Willoughby Lane, in a precinct where there are many recently constructed four-storey buildings. This is consistent with the desired character of the precinct.

3. The visual impact of the building element that exceeds the maximum building height standard is limited and will not be highly discernible from the street given the centralized nature of the portion of the building that exceeds the height control.

4. The minor departure will not be discernible from a compliant scheme. The structures that exceed the height limit have been centralised within the building envelope and setback from adjoining buildings to minimise view impacts.

5. The shadow diagrams demonstrate that the adjoining properties continue to receive appropriate levels of solar access to living areas and private open space areas and that the additional overshadowing caused by the building elements above the maximum building height development standard does not have an adverse impact.

6. The proposed variation will not have any adverse privacy impacts.

17. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”), an applicant need only establish one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]).

18. I am satisfied that the relevant standard is not relevant in the circumstances of this case for the grounds set out in the Written Request.

19. I consider the proposed development to be consistent with the objectives of the relevant standard, and I am satisfied that the objectives of the B4 zone, set out at [13], are also achieved. In forming this opinion of satisfaction, I note the mixed-use nature of the development provides ground floor commercial tenancies which promote active street frontages and is located immediately adjacent to good public transport services.

20. Next, the Written Request advances environmental planning grounds said to be sufficient to justify the contravention of the height standard, summarised in the following way:

1. The Proposed Development is contextually responsive to building design and will ensure conformity with the scale and character established by existing development throughout the locality.

2. Allowing for the height breach in response to the height of existing adjoining developments ensures the orderly and economic development of the Site.

3. The particularly small departure from the actual numerical standard and the absence of impacts as a consequence of the departure, constitute environmental planning grounds, as the Proposed Development promotes good design and amenity.

4. The visual impact of the building element that exceeds the maximum building height standard is limited and will not be highly discernible from the street given its recessed and centralised nature.

5. The shadow diagrams demonstrate that the adjoining properties receive appropriate levels of solar access to living areas and private open space areas and that the additional overshadowing caused by the building elements above the maximum building height development standard do not have an adverse impact.

21. Finally, the Written Request asserts consistency with the objectives of the zone, at [13], because the development:

1. Retains commercial tenancies at the ground floor to serve the needs of people, encourage business and generate employment opportunities and economic growth.

2. Activates the street frontage, provide a new awning and relocate the existing driveway away from the centre of the site.

3. Does not impose adverse impacts on adjoining residentially zoned land such as overshadowing, privacy or view impacts.

22. I note here that the Respondent is satisfied that the Written Request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the NSLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the B4 (now MU1) Mixed Use Zone.

23. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the NSLEP.

24. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

25. I am satisfied under cl 4.6(4) that the Written Request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the B4 (MU1) Zone, for the reasons given in the request.

26. In forming this opinion of satisfaction, I accept that the proposed development is substantially contained within the height plane at cl 4.3 of the NSLEP, that also applies to any form of development permissible in the surrounding neighbourhood within the B4 (MU1) zone.

27. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the NSLEP and I find there are no grounds on which the Court should not uphold the height request.

28. For the reasons stated above, I find the Written Request to vary the height standard should be upheld.

Other relevant matters in NSLEP

29. Clause 6.10(3) of the NSLEP requires the consent authority to consider the following matters prior to the issue of any consent:

(a) the likely disruption of, or any detrimental effect on—

(i) drainage patterns and soil stability in the locality of the development; and

(ii) natural features of, and vegetation on, the site and adjoining land;

(b) the effect of the development on the likely future use or the redevelopment of the land;

(c) the quality of the fill or the soil to be excavated, or both;

(d) the effect of the development on the existing and likely amenity of adjoining properties;

(e) the source of any fill material and the destination of any excavated material;

(f) the likelihood of disturbing Aboriginal objects or relics;

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water, catchment or environmentally sensitive area;

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

30. A geotechnical report prepared by JK Geotechnics was submitted with the Development Application; subsurface conditions, excavation conditions and groundwater conditions were considered in Subsections 3.2, 4.2 and 4.3 of that report. I am therefore satisfied from the evidence that the DA documentation and conditions of consent address the matters required by cl 6.10.

North Sydney Development Control Plan 2013

31. The North Sydney Development Control Plan 2013 (DCP) applies to the Site. The parties submit and I accept, that the proposal will not result in any unsatisfactory view loss to surrounding properties such as to warrant refusal. The parties also agree and I accept that the proposal as amended will result in acceptable overshadowing impacts and visual privacy impacts to adjoining development and otherwise meets the objectives of Sections 2.3.7 and 2.3.11 of the DCP.

32. I am satisfied from the evidence that the DCP controls have been adequately considered in the assessment of the Proposed Development and the conditions imposed.

33. Having regard to the Applicant’s explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council and have taken into account and address the objector’s concerns. I accept that each of the amendments that have been made were made with consideration of, and in response to the concerns of the Respondent and the objectors, and that the final amended development application reflects this.

34. Accordingly, I am satisfied that the proposal is in the public interest.

State Environmental Planning Policy (Resilience and Hazards) 2021

35. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) is relevant to the DA. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application.

36. The DA is accompanied by a Preliminary Site Investigation prepared by JK Geotechnics dated 24 March 2022 and a Remediation Action Plan (RAP) prepared by Trinitas Group dated 25 March 2022. The conditions of consent require the RAP to be implemented. The RAP concludes that:

“subject to the fulfilment of recommendations provided in this Remedial Action Plan (RAP), the Site will be made suitable for the proposed use as a mixed use, high density residential building.”

37. Based on the assessments undertaken as part of the site investigations, the parties agree and I am satisfied that the Site can be made suitable for future residential development subject to compliance with the recommendations in the RAP.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

38. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the land.

39. A Design Verification Statement has been prepared that assesses the proposed development against the relevant design principles set out in State Environmental Planning Policy No. 65 —Design Quality of Residential Apartment Development 2002 (SEPP 65), as well as the objectives and design criteria set out in the Apartment Design Guide (ADG). The parties submit and I accept that the proposed development adequately meets the relevant requirements of both SEPP 65 and the ADG.

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

40. A BASIX certificate has been prepared and satisfies the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Conclusion

41. 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.

42. 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.

Notes

43. The Court notes that:

1. North Sydney Council as the relevant consent authority has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 96/22 to rely upon the following amended documents:

2. Amended Plans prepared by Nettleton Tribe:

Plan No.	Description	Issue	Dated
DA001	Site Plan/Demolition Plan	D	23 March 2023
DA102	Basement 2	D	23 March 2023
DA103	Basement 1	D	23 March 2023
DA110	Ground Floor	E	23 March 2023
DA111	Level 1	E	23 March 2023
DA112	Level 2	E	23 March 2023
DA113	Level 3	E	23 March 2023
DA114	Level 4	E	23 March 2023
DA115	Roof Terrace	E	23 March 2023
DA120	External Awning	C	23 March 2023
DA121	Elevations – North	D	23 March 2023
DA122	Elevations – South	D	23 March 2023
DA123	Elevations – West	D	23 March 2023
DA124	Elevations – East	D	23 March 2023
DA125	Materials and Finishes – Sheet 1	C	23 March 2023
DA126	Materials and Finishes – Sheet 2	C	23 March 2023
DA131	Section A	E	23 March 2023
DA132	Section B	D	23 March 2023
DA151	Typical Adaptable Unit Layout 01	C	23 March 2023
DA152	Typical Adaptable Unit Layout 02	C	23 March 2023
DA222	Unit Schedule	C	23 March 2023

3. The amended cl 4.6 Variation Request prepared by Gyde Consulting dated March 2023 and updated April 2023.

Orders

44. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The Applicant’s written request under cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP) for contravention of the maximum height development standard imposed by cl 4.3 of NSLEP is well founded.

3. The appeal is upheld.

4. Development Consent is granted to Development Application 96/22 for the demolition of existing structures on the site and construction of a new five‑storey shop‑top housing development comprising of two levels of basement car parking, ground floor commercial premises, four levels of residential apartments comprising 25 apartments, communal open space and public domain improvements at 82‑90 Alexander Street, Crows Nest is approved subject to the conditions in Annexure “A”.

L Sheridan

Acting Commissioner of the Court

334267.22 Annexure A

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Decision last updated: 22 June 2023