Fobupu v Penrith City Council

[2023] NSWLEC 1390

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fobupu v Penrith City Council [2023] NSWLEC 1390

Hearing dates:

Conciliation conference on 7 February 2023 and 12 May 2023

Date of orders:

24 July 2023

Decision date:

24 July 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) The variation to the height development standard in the Penrith Local Environmental Plan 2010 pursuant to clause 4.6 is satisfactory.

(3) Development Application for demolition of existing structures, removal of 2 trees and construction of a new six-storey residential flat building containing 36 apartments, 2 levels of basement parking with 53 car spaces, rooftop open space, civil works and landscaping at 10-14 Lethbridge Street Penrith NSW 2750 is approved subject to the conditions in Annexure B.

(4) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – 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 2000, cl 50

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2011, cll 4.3, 4.6, 7.1

State Environmental Planning Policy 65—Design Quality of Residential Apartment Development 2002

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

Texts Cited:

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

Category:

Principal judgment

Parties:

Fobupu Pty Ltd(Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
S Simington (Solicitor) (Applicant)
J Wauchope (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Dentons (Respondent)

File Number(s):

2022/244999

Publication restriction:

Nil

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. DA22/0023 (the DA) for the construction of a six-storey residential flat building with basement parking and associated landscaping (the Proposal) at 10-14 Lethbridge Street, Penrith (the Site).

2. 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 7 February 2023. I presided over the conciliation conference.

3. 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.

4. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 12 May 2023.

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. 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:

1. Owner’s consent was provided with the Class 1 application.

2. The proposal is permissible within the subject R4 High Density Residential zone under Penrith Local Environmental Plan 2010 (PLEP).

3. The parties submit and I agree that the proposed development is consistent with the objectives of the subject zone.

4. The application was notified, and one submission was received in relation to the proposed height variation; non-compliance with the ADG criteria regarding building separation, common open space and deep soil; and potential impacts in relation to visual privacy, amenity, overshadowing, and public domain interface. Based on the amended plans submitted with the s34 agreement, the proposal was renotified between 25 April 2023 and 9 May 2023. Council received one public submission which raised issues of height exceedance, waste management, car parking, traffic movement, and onsite parking for residents. The parties submit and I agree that each of these issues was considered and resolved between them over the course of the s34 conciliation process.

5. The application is compliant with the development standards in the PLEP 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 PLEP is considered in [7] below).

7. The Applicant has submitted a written request under cl 4.6 of the PLEP, prepared by GLN planning, 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 21.15m at the highest point. I have reviewed the request and in accordance with cl 4.6 of the PLEP, 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 PLEP). 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 roof of the building is located below the 18m height control, however parts of the communal open space, lift overrun and a small portion of the parapet and components of architectural articulation will be above or below this standard by varying degrees.

2. The parapet and architectural articulation on the western elevation of the building is up to 0.065m over the 18m height standard. A small portion of the parapet on the northern elevation is also 0.1m over the height plane. However the parapet is below the height plane in all other locations. The landscape planter and screening are a maximum of 0.82m and 0.69m over the 18m height standard respectively. Again, parts of the planter at the eastern end of the building are located below the height plane. The parapet of the roofed area of open space is a maximum of 2.3m above the 18m height standard. The lift overrun and mechanical plant enclosure is 3.15m above the 18m height standard.

3. The maximum height of the building is located at the eastern portion of the lift over-run. The maximum height of the building at this location is 21.15m, representing a variation of 3.15 metres (17.5%).

4. The proposal is consistent with the adjoining development and provides the same justification for the variation to the height standard that was supported under DA16/0182.02.

5. The proposal is consistent with the height, bulk and scale of the emerging and desired future character of the locality.

6. A compliant development will not improve or alter the outcome in relation to visual bulk, scale, amenity and solar access.

7. The building is below the height limit on all elevations (other than a small edge of the façade material at the western and northern edge – which results from the natural slope of the land) which provides a suitable scale in the site context.

8. The proposal provides a high quality urban form and provides a building that can contribute to a varying skyline given the recent increase in height limit in this area.

9. There are no adverse environmental impacts arising from the proposed height variation.

10. These factors, raised in the written request, demonstrate that the PLEP’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 PLEP’s second height objective is met. The written request demonstrates that the PLEP’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 PLEP’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 PLEP).

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 R4 high density zone (cl 4.6(4)(a)(ii) of the PLEP). 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:

1. 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.

2. 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.

3. 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 PLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

8. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider the contamination and remediation of land when determining a development application. Given the site has historically been used for residential purposes, I agree with Council that no further investigation is required in this instance.

9. Having regard to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002(SEPP 65), the design quality of the development has been considered (including with reference to the Apartment Design Guide) and the Applicant has filed an amended Design Verification Statement in relation to the amended plans. The parties submit, and I accept, that the amended development demonstrates adequate regard for the design quality principles in Schedule 1 of SEPP 65.

10. An amended BASIX certificate has been prepared in relation to the amended plans to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Conclusion

11. 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.

12. The Court notes that:

1. The Respondent consent authority has agreed to the Applicant’s amendment of the subject development application DA22/0023 to substitute the plans as outlined in Annexure A; and

2. The Applicant has filed the amended plans with the Court on 12 May 2023.

13. The Court orders that:

1. The appeal is upheld.

2. The variation to the height development standard in the Penrith Local Environmental Plan 2010 pursuant to clause 4.6 is satisfactory.

3. Development Application for demolition of existing structures, removal of 2 trees and construction of a new six-storey residential flat building containing 36 apartments, 2 levels of basement parking with 53 car spaces, rooftop open space, civil works and landscaping at 10-14 Lethbridge Street Penrith NSW 2750 is approved subject to the conditions in Annexure B.

4. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

L Sheridan

Acting Commissioner of the Court

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Annexure A (143585, pdf)

Annexure B (347110, pdf)

Decision last updated: 24 July 2023