Exp No 1 National Park Street Pty Ltd v Newcastle City Council

[2020] NSWLEC 1441

Land and Environment Court

New South Wales

Medium Neutral Citation:

EXP No 1 National Park Street Pty Ltd v Newcastle City Council [2020] NSWLEC 1441

Hearing dates:

Conciliation conference on 17 August 2020

Date of orders:

21 September 2020

Decision date:

21 September 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend the Development Application and rely on the plans listed in Condition 2 of the Conditions of Consent at Annexure A;

(2) The Clause 4.6 variation application in relation to the development standard for height contained in clauses 7.5(6) and 4.3 of the Newcastle Local Environmental Plan 2012 is upheld;

(3) The Clause 4.6 variation application in relation to the development standard for building separation contained in clause 7.4 of the Newcastle Local Environmental Plan 2012 is upheld;

(4) The appeal is upheld;

(5) Development Application No. DA2019/00711 lodged with the Respondent on 25 June 2019 and as amended by the plans, drawings and material listed in Condition 1 of the Conditions of Consent for the demolition of existing structures, construction of two towers of 22 and 19 stories comprising 193 dwellings; office premises; ground floor retail premises; car parking and associated landscaping and ancillary works at 1, 17 and 19 National Park Street and 484 King Street, Newcastle West NSW 2302 is approved subject to the conditions annexed to this agreement as Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – two residential towers comprising 145 dwellings – Newcastle city centre – development standard contraventions – design excellence – conciliation conference – agreement between the parties – orders

Legislation Cited:

Coal Mine Subsidence Compensation Act 2017

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Newcastle Local Environmental Plan 2012

State Environmental Planning Policy (Coastal Management) 2018

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Category:

Principal judgment

Parties:

Exp No 1 National Park Street Pty Ltd (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
T To (Respondent)

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

File Number(s):

2019/393097

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 Newcastle City Council's refusal of Development Application DA2019/00711 (‘DA’).

2. The DA seeks consent for the demolition of existing structures, construction of two towers of 22 and 19 stories comprising 193 dwellings; office premises; ground floor retail premises; car parking and associated landscaping and ancillary works at 1, 17 and 19 National Park Street and 484 King Street, Newcastle West (‘site’).

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 17 August 2020, and at which I presided. Amended plans were considered at the conference which among other things provided for the scaling back of the development. After more time was given, the parties filed an agreement with the Court on 28 August 2020 as to the terms of a decision in the proceedings that would be acceptable to the parties.

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

5. 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.

Jurisdictional considerations

6. 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. In advice emailed to the Court on 28 August 2020 and in follow-up advice, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, and noting this advice, I am satisfied as indicated below.

1. A valid development application was lodged with the Respondent in accordance with the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to carry out the proposed development.

2. The site falls within Zone B3 Commercial Core under the applicable Newcastle Local Environmental Plan 2012 (‘LEP’). The proposed development is permissible in the zone as 'shop top housing, commercial premises, retail premises' and ‘demolition’. 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 maximum building height and building separation, which I consider below under a separate heading.

3. Clause 5.10 of the LEP is engaged because the DA proposes works on land that is within a heritage conservation area (HCA), and is within proximity to a number of heritage items. The parties advise that proposed development will not create any further adverse visual impacts to the HCA or heritage items within the locality. I accept the advice of the parties and conclude that I have given consideration to the effect of the proposed development on the heritage significance of the items or HCAs.

4. In regard to cl 6.1(4) of the LEP, a preliminary assessment of the proposed development has indicated that potential acid sulfate soils were present on the site. Accordingly, an acid sulfate soils management plan is required for the works and included in conditions.

5. The parties advise that Council has considered the relevant matters listed at cl 6.2(3) of the LEP in regard to earthworks. I rely on this advice to conclude that I too have given these matters the required consideration.

6. Clause 7.5(2) of the LEP provides that development consent must not be granted for this development unless the consent authority considers that the development exhibits design excellence. Clause 7.5(3) lists matters which a consent authority must have regard to in forming its opinion in regard to design excellence. Advice has been provided by the parties in regard to cl 7.5 and design excellence. This advice included an explanation on behalf of the applicant of the project oversight undertaken by a design review panel towards the final design now before the Court, and commentary to evidence the design qualities of the proposal mindful of cl 7.5(3). In addition, the Council provided advice that it is satisfied that the development exhibits design excellence under cl 7.5(2). Having reviewed this advice, I am also satisfied that the development exhibits design excellence under cl 7.5(2) of the LEP. I also note the documentary evidence of the waiver of the requirement for an architectural design competition under cl 7.5(5) of the LEP in this case.

7. In regard to cl 7.6 of the LEP, and on the advice of the parties, I am satisfied that the proposed building will have an active street frontage.

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

1. The development is required to comply with the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (‘SEPP 65’). The requirements of cl 30(2) of SEPP 65 are met in that the Applicants’ architect has prepared a Design Verification Statement in satisfaction of cl 50(1A) and cl 50(1AB) of the EPA Regulation. Further, it is noted that the proposal was referred to the relevant design review panel (the Urban Design Consultative Group) for advice concerning the design quality of the development on six occasions between 20 June 2018 and 21 August 2019. The relevant matters have been given consideration under cl 28(2) of SEPP 65.

2. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55’), Preliminary and Detailed Site Investigations have been undertaken. Consideration has been given as to whether the subject site is contaminated and appropriate conditions are adopted.

3. Certain provisions State Environmental Planning Policy (Infrastructure) 2007 (‘SEPP Infrastructure’) apply as follows:

1. Clause 101(2) applies as the development is proposed to be carried out with frontage to a classified road.

2. Clause 102(2) applies due to the adjacency of a higher order road and that Council considers the proposed residential accommodation is likely to be affected by road noise or vibration. The parties advise that the relevant criteria have been taken into account in the assessment process. I am satisfied in regard to the relevant provisions of cl 102(2).

3. Clause 104 applies due to the traffic generating potential of the proposal. The application was referred Roads and Maritime Services (RMS), as required. Comments were received by the RMS during notification to assist the consent authority in making a determination.

4. Certain provisions of State Environmental Planning Policy (Coastal Management) 2018 are relevant. Specifically, I mention that Council has given attention to cll 14, 15 and 16 of this SEPP and with the aid of the Statement of Environmental Effects which accompanied the application, is duly satisfied in regard to the requirements. On this basis I too am satisfied.

5. Certain provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 apply. I accept the parties’ advice that the requirements of cl 7 are satisfied, as the proposed development seeks approval for the removal of prescribed trees.

7. The parties advise that the application was notified in accordance with requirements and consideration has been given by Council to public submissions as required under s 4.15 of the EPA Act. I have also considered the summary of the submissions as outlined in Council’s Statement of Facts and Contentions filed on 25 March 2020.

8. The parties advise that the proposal is integrated development under s 4.46 of the EPA Act, as an approval under s 22 of the Coal Mine Subsidence Compensation Act 2017 would be required. The parties advise that the proposal had received the relevant General Terms of Approval (under s 4.47(2) of the EPA Act) from Subsidence Advisory. The proposed conditions of consent at 'Annexure A' are consistent with the General Terms of Approval issued by Subsidence Advisory.

Consideration of development standard contraventions

9. There are contraventions to two development standards in the LEP. On behalf of the applicant, and in accordance with cl 4.6(3) of the LEP, KDC 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.

Building height (KDC written request dated 18 August 2020)

10. The development standard sought to be varied is contained in cl 4.3 of the LEP. Clause 7.5(6) of the LEP operates to vary that building height development standard by up to 10% if the design has been reviewed by a ‘design review panel’, as prescribed under the LEP. In the circumstances applicable here, where the design has been so reviewed, the maximum building height is 66m.

11. The maximum building height occurs at the southern tower and is 76.18m to the lift and stair overrun. The roof top terrace is 74.67m and the main roof line is 71.20m. The northern tower is compliant.

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). There are two limbs to the written request.

1. Firstly, the written request shows how, otherwise, the development achieves the objectives of cl 4.3. The written request does this by considering both of the building height standard objectives and explaining how the proposal:

1. Is of a scale which makes a positive contribution towards the desired built form, consistent with the established centres hierarchy – I am satisfied with the written request’s demonstration that this is achieved because of the proposal’s alignment with strategic ambitions for this part of Newcastle centre, juxtaposition with regard to other new development in the environs and architectural design quality.

2. Allows reasonable daylight access to all developments and the public domain – I am satisfied with the written request’s demonstration that the proposed design achieves this based on shadow diagram analysis.

2. The written request also considers the objectives of Part 7 of the LEP which provides additional local provisions in regard to Newcastle City Centre and includes the 10% height bonus at cl 7.5.

1. The written request works through each of the eight objectives of the clause, reproduced below:

(a) to promote the economic revitalisation of Newcastle City Centre,

(b) to strengthen the regional position of Newcastle City Centre as a multi-functional and innovative centre that encourages employment and economic growth,

(c) to protect and enhance the positive characteristics, vitality, identity, diversity and sustainability of Newcastle City Centre, and the quality of life of its local population,

(d) to promote the employment, residential, recreational and tourism opportunities in Newcastle City Centre,

(e) to facilitate the development of building design excellence appropriate to a regional city,

(f) to encourage responsible management, development and conservation of natural and man-made resources and to ensure that Newcastle City Centre achieves sustainable social, economic and environmental outcomes,

(g) to protect and enhance the environmentally sensitive areas and natural and cultural heritage of Newcastle City Centre for the benefit of present and future generations,

(h) to help create a mixed use place, with activity during the day and throughout the evening, so Newcastle City Centre is safe, attractive, inclusive and efficient for its local population and visitors alike.

2. Through its linking of the social, economic and environmental ambitions of these objectives with the proposal features, it is demonstrated that the proposal would directly assist in achieving these goals.

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 to me are the design excellence process requirements through which the proposal has worked through to reach its current design qualities; and the argument that the two “slender” towers, as now proposed (albeit with one exceeding height standards), are significantly superior to compliant “bulkier” buildings in terms of design quality, and potential contribution to the Newcastle centre.

3. Together the above two findings (see [12](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 of the applicable height standard.

2. Like the author of the written request, I find the proposal consistent with the objectives of the B3 Commercial Core zone in the LEP. This is because the proposal:

1. has a range of retail and office spaces on the ground floor, levels 1 and 2 of the buildings in conjunction with apartments, serving the local and wider community. Appropriate design measures and high-quality public domain spaces ensure that the proposal will be a cohesive and attractive development for the local area.

2. would clearly generate employment opportunities within the accessible West End of Newcastle.

3. would, given its accessible location, help maximise public transport patronage and encourage walking and cycling.

4. provides commercial floor space as well as residential development including 4 retail premises on the ground level and 9 office premises located on Levels 1 and 2.

5. can strengthen the role of the Newcastle City Centre as the regional business, retail and cultural centre of the Hunter region, due to its alignment with established planning goals.

6. both retains and creates view corridors as demonstrated in the view analysis accompanying the proposal.

5. On the basis of [12](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 the contravention and find no matters of significance arise in regard to these matters.

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.

Building separation contravention (KDC written request dated 24 June 2019)

14. The development standard sought to be varied is contained in cl 7.4 of the LEP. Subclause (1) provides:

A building on land to which this Part applies must be erected so that the distance from the building to any other building is not less than 24 metres at 45 metres or higher above ground level.

15. The actual minimum numeric value for building separation above the 45m height plane is indicated as “21.55 (minimum) to 22.35 metres” in the written request (p9). This is a measurement between the two proposed towers.

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). While there are no objectives nominated in regard to building separation under cl 7.4 of the LEP, the written request appropriately references the objectives to Part 2F of the Apartment Design Guide under SEPP 65, demonstrating that these objectives are achieved notwithstanding non-compliance with the cl 7.4 standard. The written request works through the relevant design characteristics of the building and the quality oversight involved in the approval process to demonstrate that the proposal:

1. is scaled to support the desired future character with appropriate massing and spaces between buildings.

2. provides for residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook.

3. provide suitable areas for communal open spaces, deep soil zones and landscaping.

2. The written request also outlines certain environmental planning grounds seen as justifying the contravention, with which I am satisfied. The planning grounds of particular pertinence to me are the design excellence process requirements through which the proposal has worked through to reach its current design qualities; and the fact that the contraventions would be difficult to discern.

2. Together the above two findings (see [16](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.

3. 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 B3 Commercial Core zone in the LEP (see [12(4)(b) above).

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, 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 this contravention and find no matters of significance arise in regard to these matters.

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 building separation 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. Leave is granted to the Applicant to amend the Development Application and rely on the plans listed in Condition 2 of the Conditions of Consent at Annexure A;

2. The Clause 4.6 variation application in relation to the development standard for height contained in clauses 7.5(6) and 4.3 of the Newcastle Local Environmental Plan 2012 is upheld;

3. The Clause 4.6 variation application in relation to the development standard for building separation contained in clause 7.4 of the Newcastle Local Environmental Plan 2012 is upheld;

4. The appeal is upheld;

5. Development Application No. DA2019/00711 lodged with the Respondent on 25 June 2019 and as amended by the plans, drawings and material listed in Condition 1 of the Conditions of Consent for the demolition of existing structures, construction of two towers of 22 and 19 stories comprising 193 dwellings; office premises; ground floor retail premises; car parking and associated landscaping and ancillary works at 1, 17 and 19 National Park Street and 484 King Street, Newcastle West NSW 2302 is approved subject to the conditions annexed to this agreement as Annexure A.

.……………………………..

P Walsh

Commissioner of the Court

Annexure A (431629, pdf)

Architecture Plans (21191334, pdf)

Landscape Plans (2025805, pdf)

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Decision last updated: 21 September 2020