Designcorp Architects Pty Ltd v Penrith City Council

[2020] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:	Designcorp Architects Pty Ltd v Penrith City Council [2020] NSWLEC 1183
Hearing dates:	Conciliation conference on 2 April 2020
Date of orders:	21 April 2020
Decision date:	21 April 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The Applicant is given leave to amend the development application and rely upon the plans in the proceedings referred to in condition 1 in Annexure "A". (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application, in the sum of $9,000 payable within 14 days of the making of this Agreement. (3) The appeal in respect of the property known as No. 32-36 Hope Street, Penrith is upheld. (4) Development application DA2017/1341 seeking consent for the demolition of existing structures and construction of a    six (6) storey residential flat building containing 41 apartments is approved subject to the conditions in Annexure "A".
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Designcorp Architects Pty Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: A Gough (Solicitor) (Applicant) C Drury (Solicitor) (Respondent)   Solicitors: Storey and Gough (Applicant) Sparke Helmore (Respondent)
File Number(s):	2019/145085
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal of Development Application No. DA2017/1341 (‘DA’).

2. The DA sought consent for the demolition of existing structures and the construction of a six storey residential flat building containing 45 units over two levels of basement parking at 32-36 Hope Street, Penrith (‘site’).

3. 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 2 April 2020. I presided over the conciliation conference.

4. After the conciliation conference, the parties provided evidence of an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, now amended to provide for 41 apartments, subject to conditions.

5. 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 DA. The parties indicate that the decision is one that the Court can make in the proper exercise of its functions and I so agree, in particular noting the following (having regard to the commentary at Annexure B to the agreement):

1. The proposal is permissible within the subject R4 High Density Residential zone under Penrith Local Environmental Plan 2010 (‘LEP’).

2. I have had regard to the objectives of the subject zone.

3. The application was notified, and no submissions were received.

4. Having regard State Environmental Planning Policy No 55— Remediation of Land and in particular cl 7, consideration has been given to whether the land is contaminated. Given the site has historically been used for residential purposes, I agree with Council that no further investigation is required in this instance.

5. Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, the design quality of the development has been considered (including with reference to the Apartment Design Guide) and the Applicant has filed a Design Verification Statement in accord with the requirements of cll 50(1A) and 50(1AB) of the Environmental Planning and Assessment Regulation 2000.

6. The application is compliant with the development standards in the LEP with the exception of provisions at cl 4.3 relating to height of buildings (a written request submitted by the Applicant under cl 4.6 of the LEP is considered below).

7. Having regard to cl 7.1 of the LEP, I am advised that part of the site has been identified as being “at or below the flood planning level”. On the advice of the parties, including their reference to the Statement of Environmental Effects accompanying the application (Think Planners Pty Ltd, December 2017, p29) I find that the matters listed at subclauses (a)-(i) of cl 7 of the LEP are satisfied, relevantly, with respect to the development.

6. The Applicant has filed a written request under cl 4.6 of the LEP to vary the standard at cl 4.3 relating to maximum building height. The height control is 18m and the proposal has a building height of 19.2m at the highest point. I have reviewed the request and in accordance with cl 4.6 of the LEP, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of the LEP). This is because the written request shows how the underlying objectives of the height control are satisfied, otherwise. Of particular note in the written request are that: (1) the height exceedance is limited to a lift overrun and part of the roof, (2) higher elements of the building are recessed, and (3) building facades are highly articulated. These factors, raised in the written request, demonstrate that the LEP’s first height objective is met. The written request also shows how there is no visual impact, disruption of views, loss of privacy and loss of solar access as a consequence of the site exceedance, demonstrating how the LEP’s second height objective is met. The written request demonstrates that the LEP’s third height objective is not relevant as the site is not proximate heritage items, heritage conservation areas and areas of scenic or visual importance. The written request demonstrates that the LEP’s fourth objective is also satisfied with the proposal not prejudicing its achievement.

2. The written request adequately establishes that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b) of the LEP). This is through demonstrating how the lift overrun means that the persons with a disability can access the rooftop communal area.

3. As a consequence of my findings at (1) and (2) above, I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated under cl 4.6(4)(a)(i).

4. I am also satisfied that the proposed development is in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the high density zone (cl 4.6(4)(a)(ii) of the LEP). It is on the basis of the written request (above), that I am satisfied that the development is consistent with the objectives of the height of building standards. I also believe, in regard to the applicable zone objectives, and based on the analysis of the plans and the advice of the parties that: the proposal provides for the varied housing needs of the community within a high density residential environment, and with a high level of residential of amenity. I find on the same basis that the development would act to encourage affordable housing and reflects the desired future character and dwelling densities of the area. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP are met.

5. Mindful of cl 4.6(5), I am satisfied the proposal does not raise any matter of significance for State or regional environmental planning.

6. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

7. On the basis of the above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. The Court orders that:

1. The Applicant is given leave to amend the development application and rely upon the plans in the proceedings referred to in condition 1 in Annexure "A".

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application, in the sum of $9,000 payable within 14 days of the making of this Agreement.

3. The appeal in respect of the property known as No. 32-36 Hope Street, Penrith is upheld.

4. Development application DA2017/1341 seeking consent for the demolition of existing structures and construction of a six (6) storey residential flat building containing 41 apartments is approved subject to the conditions in Annexure "A".

…………………………

P Walsh

Commissioner of the Court

Annexure A (132 KB)

Plans (8.09 MB)

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Decision last updated: 21 April 2020