Edmondson Grange Pty Ltd v Liverpool City Council

[2020] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation:

Edmondson Grange Pty Ltd v Liverpool City Council [2020] NSWLEC 1594

Hearing dates:

Conciliation conference on 29 October 2020

Date of orders:

01 December 2020

Decision date:

01 December 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [20]

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

Liverpool Local Environmental Plan 2008

State Environmental Planning Policy (Infrastructure) 2007

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:

Edmondson Grange Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2019/400791

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Liverpool City Council's deemed refusal of Development Application DA-723/2019 (‘DA’).

2. The application is for staged development, being a subdivision to create 18 residential allotments, the construction of a new road, and three four-storey residential flat buildings with basement parking, six multi dwelling units, dual occupancy units and associated landscaping and civil works. The site is described as Lot 117 of DP 1245022, Ardennes Avenue, Edmondson Park.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 29 October 2020, and at which I presided. The parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, indicating it is a decision that the Court could have made in the proper exercise of its function.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (Annexure B to the filed agreement). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below.

1. The site falls within R1 - General Residential Zone pursuant to the provisions of the Liverpool Local Environmental Plan 2008 (LEP), and the proposed development is permissible within the zone. The following additional provisions of the LEP need consideration:

1. In accordance with cl 2.3(2) of the LEP, I have had regard to the zone objectives.

2. The proposal does not meet development standards in regard to building height, floor space ratio (FSR) and minimum lot width, which I consider below under a separate heading.

3. Part 6 of the LEP does not apply as the site is within a special contributions area (as defined by s 7.1 of the EPA Act).

4. In regard to cl 7.11 of the LEP and minimum dwelling densities, I am satisfied with the advice of the parties that the dwelling density likely to be achieved by the subdivision is not less than the dwelling density shown for the land on the LEP’s Dwelling Density Map.

2. The following additional jurisdictional matters arise in other environmental planning instruments:

1. Certain matters relating to design quality apply to this proposal. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (‘SEPP 65’) brings forward certain requirements, as does the Environmental Planning and Assessment Regulation 2000 (‘EPAR’):

1. Clause 50(1A) of the EPAR requires a development application that relates to residential apartment development to be accompanied by a design verification statement (‘DVS’) meeting stipulated requirements. A DVS was provided with the application. A revised DVS dated 27 October 2020 and signed by registered architect Frank Mosca has also been prepared addressing the design quality principles and demonstrating how the objectives of the Apartment Design Guide have been achieved.

2. Mindful of the requirements of cl 28(2) of SEPP 65, I have taken into consideration the design quality of the proposed development (as amended), when evaluated in accordance with the design quality principles, and the Apartment Design Guide. I note the advice of the parties that while the application was referred to a design review panel, no advice was received that requires my consideration, otherwise under cl 28.

3. Mindful of the advice of the parties, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria, addressing cl 30(2) of SEPP 65. Conditions of consent require design verification by a registered architect with applications for construction and occupation certificates verifying that the residential flat development as constructed achieves the design quality of the development as shown in the approved plans and specifications (Conditions 39 and 127). Here I acknowledge cll 143A and 154A of the EPAR.

2. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55’), as is made clear by reference to submitted documentation in the parties jurisdictional advice, consideration has been given as to whether the subject site is contaminated. The parties advise in regard to cl 7(1)(b) of SEPP 55 that the land will be suitable for the purpose for which the development is proposed to be carried.

3. Clause 102 of State Environmental Planning Policy (Infrastructure) 2007 (‘SEPP Infrastructure’) applies in relation to road noise considerations. An acoustic report accompanying the application (“Development Application Acoustic Report, Sebastian Giglio, 3 August 2020”) has given consideration to the guideline entitled “Development Near Rail Corridors and Busy Roads — Interim Guidelines”, which I accept is relevant to cl 102(2). I have also given consideration to this guideline. I accept the advice of the parties that the acoustic report also addresses the requirements of cl 102(3). I am satisfied under cl 102(3) given the requirements of Condition 32 requiring the acoustic report recommendations to be implemented.

6. A condition of consent in accordance with the Ministerial Direction dated 14 January 2011 relating to special infrastructure contributions has been applied (Condition 15).

Consideration of development standard contraventions

7. The proposal involves contravention of three development standards in the LEP. On behalf of the applicant, and in accordance with cl 4.6(3) of LEP, Urbis has submitted written requests seeking to justify each of the contraventions. For the relevant descriptive material below, I rely generally on the relevant written requests before making my own jurisdictional conclusions.

Floor space ratio (Urbis written request dated 2 September 2020)

8. The development standard sought to be varied is contained in cl 4.4(2) of the LEP, applying a maximum FSR of 0.75:1. The written request describes the contravention as a “technical breach”, as the development overall complies with the FSR standard with a ratio of 0.53:1. The concern is with the proposed lot which would accommodate the four-storey residential flat buildings. Of itself this lot (proposed Lot 216) would have an FSR of 1.19:1.

9. I have reviewed the written request and other matters related to whether the permissive powers of cl 4.6 of the LEP should be available. I am satisfied in regard to the matters listed below, as explained.

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). It does this by demonstrating how otherwise, the development achieves the objectives of cl 4.4 of the LEP and how the development:

1. With its overall scale, aligns with infrastructure availability

2. Helps achieve the desired future character by providing for a variety of housing types

3. Will not give rise to adverse effects in regard to adjoining properties and the public domain

4. Maintains an appropriate visual relationship with lands not undergoing substantial change

5. Relates appropriately overall to the size of the site acknowledging that the development as a whole complies with the control.

2. The written request outlines certain environmental planning grounds seen as justifying the contravention (cl 4.6(3)(b) of the LEP), with which I am satisfied. The planning grounds of particular pertinence to me relate the proposed FSR on Lot 216 to the objectives of the zone, particularly in regard to providing a variety of housing types and densities, mindful of the particular contextual setting (ie lower density development adjacent).

3. Together the above two findings (see [(1)]and [(2)]) mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied.

4. I now turn to the test at cl 4.6(4)(a)(ii) of the LEP.

1. I rely on the written request’s demonstration that the proposal is consistent with the objectives of the applicable FSR standard.

2. Like the author of the written request, I find the proposal consistent with relevant objectives of the R1 General Residential zone in the LEP. This is because the proposal provides for the housing needs of the community and with the provision of a variety of housing types in a location with good access to public transport, employment, services and facilities.

5. On the basis of [(4)]above, I am 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 relevant zone. Therefore, the test of cl 4.6(4)(a)(ii) of the LEP is satisfied.

6. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b), but note that I have considered the matters in cl 4.6(5) of the LEP in coming to my conclusions in regard to the contravention and find no matters of significance arise in regard to these matters.

10. 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 FSR control in LEP.

Building height (Urbis written request dated August 2020)

11. The development standard sought to be varied is contained in cl 4.3(2) of the LEP, applying a maximum building height of 12m. Each of the three residential flat buildings breach this control with respect to their rooftop parapets and lift overruns, see table below:

Building A	Building B	Building C
Rooftop parapet	640mm	415mm	163mm
Lift overrun	3.7m	3.63m	3.425m

Figure 1 - Building height contraventions (source: Urbis written request dated August 2020)

12. I have reviewed the written request and other matters related to whether the permissive powers of cl 4.6 of the LEP should be available. I am satisfied in regard to the matters listed below, as explained.

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). It does this by demonstrating how otherwise, the development achieves the relevant objectives of cl 4.3 of the LEP. Relevant objectives are at subcll (b) and (c) and the written request amply demonstrates that the proposal incorporates high quality urban form (relevantly enabling roof access for communal purposes) and does not result in adverse effects in terms of the capacity of other buildings and public areas to experience sky and sunlight.

2. The written request outlines certain environmental planning grounds seen as justifying the contravention, with which I am satisfied. The planning grounds of particular pertinence are the fact that it is the lift well which provides for the access to the roof top communal space.

3. Together the above two findings (see [(1)] and [(2)] above) mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied.

4. I now turn to the test at cl 4.6(4)(a)(ii) of the LEP.

1. As above, I rely on the written request’s demonstration that the proposal is consistent with the objectives of the applicable height standard.

2. I have already found that the proposal is consistent with the objectives of the zone.

5. On the basis of the above, I am 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 relevant zone. Therefore, the test of cl 4.6(4)(a)(ii) of the LEP is satisfied.

6. As indicated previously the provisions of cl 4.6(4)(b) of LEP have been considered.

13. 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 building height control.

Lot width contravention (Urbis written request dated August 2020)

14. The development standard sought to be varied is contained in cl 7.13 of the LEP. Subclauses (3) provides, relevantly, as follows:

(3) The width of any lot, resulting from a subdivision of land to which this clause applies, that is capable of accommodating residential development but is not the subject of a development application for that purpose, must not be less than 10 metres …

15. Ten of the lots proposed in the subdivision, which are capable of accommodating residential development, have widths under 10m. Each of these lots have widths over 9m.

16. I have reviewed the written request and other matters related to whether the permissive powers of cl 4.6 of the LEP should be available. I am satisfied in regard to the matters listed below, as explained.

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). It does this by demonstrating how otherwise, the development achieves the objectives of cl 7.13 of the LEP, and showing how the proposed lot widths and other lot dimensions are able to accommodate residential development that is suitable for its purpose and is consistent with relevant development controls.”

2. The written request also outlines environmental planning grounds seen as sufficient to justify the contravention. This is the fact of the consistency of the lot widths as proposed with the recent approval for adjacent subdivision.

3. Together the above two findings (see [(1)] and [(2)] above) mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied.

4. I now turn to the test at cl 4.6(4)(a)(ii) of the LEP.

1. I rely on the written request’s demonstration that the proposal is consistent with the objectives sought to be achieved by the standard.

2. I have already found that the proposal is consistent with the objectives of the zone.

5. On the basis of my findings at [16(4)] above, I am 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 relevant zone. Therefore, the test of cl 4.6(4)(a)(ii) of the LEP is satisfied.

6. As indicated above, the provisions of cl 4.6(4)(b) of LEP have been considered.

17. 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 minimum lot width control.

Conclusion

18. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and 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.

19. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

20. The Court orders that:

1. The applicant is granted leave to amend the development application and rely on:

1. the drawings and documents referred to in condition 1 of Annexure “A” to this agreement;

2. ‘Clause 4.6 Variation Request – Height of Building and Lot Width’, dated August 2020, prepared by Urbis Pty Ltd;

3. ‘Amended Clause 4.6 Variation Request: September 2020’, dated 2 September 2020, prepared by Urbis Pty Ltd;

2. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The Applicant's written request under clause 4.6 of the Liverpool Local Environmental Plan 2008 (the LEP) seeking a variation of the development standard for height of buildings set out in clause 4.3(2) of the LEP is upheld.

4. The Applicant's written request under clause 4.6 of the LEP seeking a variation of the development standard for minimum lot width set out in clause 7.13(3) of the LEP is upheld.

5. The Applicant's written request under clause 4.6 of the LEP seeking a variation of the development standard for floor space ratio set out in clause 4.4(2) of the LEP is upheld.

6. The appeal is upheld.

7. Development application DA-723/2019 for staged development, being a subdivision to create 18 residential allotments, the construction of a new road, and three four storey residential flat buildings with basement parking, six multi dwelling units, dual occupancy units and associated landscaping and civil works is approved subject to the conditions set out in Annexure “A” to this agreement.

8. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders.

.……………………………..

P Walsh

Commissioner of the Court

Annexure A (702739, pdf)

Architectural Plans (47260208, pdf)

Subdivision Plan (352629, pdf)

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Decision last updated: 01 December 2020