Eastview (Australia) Pty. Limited v North Sydney Council

[2023] NSWLEC 1641

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eastview (Australia) Pty. Limited v North Sydney Council [2023] NSWLEC 1641

Hearing dates:

Conciliation conferences on 27 July, 9 and 31 August and 27 September 2023

Date of orders:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the Amended Application, as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development Application No. 404/22 lodged on 20 December 2022, as amended, for the demolition and construction of a five-storey mixed-use residential and commercial development with three levels of basement parking at 165-173 Military Road, Neutral Bay, is determined by the grant of development consent, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – mixed use – residential – cl. 4.6 written request – height variation – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, ss 29, 38

Land and Environment Court Act 1979, s 34

North Sydney Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 4.4A, 4.6, 5.10, 6.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.6

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

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

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

Category:

Principal judgment

Parties:

Eastview (Australia) Pty. Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2023/39866

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application no. DA404/22 for the demolition of existing structures and construction of a six-storey mixed use residential and commercial development with three levels of basement carparking (development application) at 165-173 Miliary Road, Neutral Bay, legally described as Lots E and F in DP 392971 and Lots 1 and 2 in DP 615859 (subject site).

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 27 July 2023. Subsequent conciliation conferences were held on 9 and 31 August and 27 September 2023. I presided over the conciliation conferences.

3. The Court notes that North Sydney Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending Development Application No. DA/404/22 in accordance with the amended plans and additional information at Annexure B (amended application). The Applicant filed the amended application with the Court on 28 September 2023. The key amendments include:

• Reduction from six storeys to five storeys and addition of a roof top communal open space area for use by the residents;

• Addition of a landscaped green wall to conceal services (such as the lift overrun and car park exhaust);

• Increased 1.5m setback to Level 3 with associated internal amendments;

• Internal amendments within the basement;

• Relocation of the bin holding area to May Lane;

• Addition of site stormwater detention and rainwater tank; and

• Additional information in relation to landscaping, stormwater management, traffic, planning and acoustic impacts.

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. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owners consent accompanied the development application.

10. The application was lodged with the Respondent on 20 December 2022. The Respondent notified the development application between 20 January 2023 to 3 February 2023. Sixteen submissions were received. The amended application was informally renotified to landowners who had originally made a submission from 7 September 2023 to 21 September 2023. One submission was received in relation to the proposed height of the building. The concerns of the submissions have been considered by the consent authority, North Sydney Council.

North Sydney Local Environmental Plan 2013 (NSLEP)

11. The subject site is zoned MU1 Mixed Use pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP), where the proposed development for a mixed use development (retail and a residential flat building) is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

12. Demolition requires consent pursuant to cl 2.7 of the NSLEP, which forms part of the amended application.

13. Clause 4.3 Height of buildings of the NSLEP applies, which allows a maximum height of 16m. The amended application exceeds the height limit, with an overall height of 21.835m (a variation of 5.835m or 36.46%). The height breaches relate to the lift, lift overrun, awning for the communal open space and a portion of level 5.

14. The amended application is supported by a cl 4.6 written request authored by The Planning Studio dated 28 August 2023 (written request). The parties agree, and I accept, that the written request justifies the contravention and that the proposed development is in the public interest for the following reasons:

1. The written request demonstrates that compliance with the height development standard is unreasonable or unnecessary in the circumstances of this case. The written request demonstrates that the objectives for height are achieved notwithstanding the contravention as:

1. The breach is a result of the natural topography;

2. The breach will not affect sharing of existing views;

3. The breach itself does not create overshadowing impacts to residential properties and the overshadowing to the public domain for an addition hour is minimal;

4. Areas where the proposed breaches occur have appropriate privacy measures, including privacy screening; and

5. The proposed breaches are compatible with future development as well as the scale, density and character of the area.

2. The written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard as the contravention is in response to:

1. Providing a rooftop communal open space that is consistent with recent development along Military Road;

2. The National Construction Code 2022 servicing requirements for areas beneath rooftop communal open spaces. A higher minimum floor to floor height is required in order to provide adequate insulation, waterproofing and fire rating, and;

3. The topography of the site.

3. The contravention from the proposed development will be in the public interest as it is consistent with the objectives of the height development standard and consistent with the MU1 Mixed Use zone objectives as provided within the written request.

4. In accordance with cl 4.6(5), I have considered the provisions and am satisfied that the contravention will not infringe on those matters.

15. Accordingly, I am satisfied that the written request and proposed contravention to the height development standard is adequately justified in accordance with the matters set out in cl 4.6 of the NSLEP.

16. Clause 4.4A Non-residential floor space ratios (FSR) of the NSLEP applies, which requires a minimum non-residential FSR of 0.5:1. The parties agree, and I am satisfied, based on the Architectural Plans prepared by EMBECE, Dwg 110 Revision N, that the amended application complies with the minimum non-residential FSR.

17. Clause 5.10 Heritage Conservation of the NSLEP applies as the subject site is in close proximity to heritage items. The application is accompanied by a Heritage Impact Assessment prepared by NBRS & Partners dated 12 December 2022 (HIS). I have considered the HIS and accept the parties agreed evidence that the provisions of cl 5.10 of the NSLEP have been adequately addressed.

18. Clause 6.10 Earthworks of the NSLEP applies to the proposed development. I have considered the provisions of cl 6.10, the Geotechnical Report prepared by Pells Sullivan Meynink dated 13 December 2022, the Civil Engineering Plans and the conditions of consent at Annexure A. I agree with the parties that the requirements of cl 6.10 Earthworks have been met.

State Environmental Planning Policy(Biodiversityand Conservation) 2021

19. Chapter 6 Water Catchments of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the subject site, as it is mapped within the Sydney Harbour Catchment. I have considered the provisions of s 6.6, the Clause 6.6 Statement prepared by Costin Roe Consulting dated 29 August 2023, the Groundwater Letter prepared by JBS&G dated 28 August 2023 and conditions of consent at Annexure A. The parties agree and I accept that the amended application has addressed the provisions.

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

20. The parties agree and I am satisfied that the amended application is accompanied by a BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

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

21. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development in accordance with cl 4.

22. Clause 28 requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 of SEPP 65 and the Apartment Design Guide (ADG). Clause 30(2) requires that adequate regard must be had to the same provisions. Relevantly, s 29 of the EPA Reg 2021 requires that residential apartment development must be accompanied by a design statement by a qualified designer in relation to the design quality principles within Sch 1 of SEPP 65 and the ADG.

23. I have considered the Design Principles and ADG Compliance Table prepared by EMBECE Architects dated 26 September 2023 (design statement) that accompanied the amended application. The design statement has been completed by the nominated qualified designers Chi Melhem (registered architect No 7754) and Mladen Prnjatovic (registered architect No 7468) and I am satisfied that the proposed development has adequately considered the design quality principles and ADG.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The proposed development is accompanied by a Detailed Site Investigation report (DSI) prepared by JBS&G dated 12 December 2022 which states that the site is suitable for the proposed development. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

25. The subject site has a frontage to a classified road and accordingly, s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies.

26. In accordance with s 2.119(2), the parties agree and I am satisfied on the basis of the amended architectural plans prepared by EMBECE, Acoustic Report prepared by Stantec dated 12 December 2022, Acoustic Analysis for Natural Ventilation Letter prepared by Stantec dated 10 August 2023, Natural Ventilation Assessment Report prepared by VIPAC dated 9 August 2023 and conditions of consent at Annexure A, that the amended application meets the requirements as:

• Vehicular access is provided from May Lane, which is not a classified road;

• The amended application will not generate smoke or dust that would impact the operation of the classified road; and

• Impacts from the road to the proposed development have been appropriately ameliorated.

Conclusion

27. 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.

28. I have considered the jurisdictional prerequisites 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.

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.

Orders:

30. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amendment of the development application, as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. 404/22 lodged on 20 December 2022, as amended, for the demolition and construction of a five-storey mixed-use residential and commercial development with three levels of basement parking at 165-173 Military Road, Neutral Bay, is determined by the grant of development consent, subject to the conditions of consent in Annexure ‘A’

I certify that this and the preceding 7 pages are a true copy of my reasons for judgment.

S Porter

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 01 November 2023