Ghazi Al Ali Architect Pty Ltd v City of Canada Bay Council

[2019] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ghazi Al Ali Architect Pty Ltd v City of Canada Bay Council [2019] NSWLEC 1573
Hearing dates:	Conciliation conference on 16 October 2019; 31 October 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans and documentation referred to in condition 1 of the conditions of consent contained at Annexure ‘A’. (2) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3)   The Applicant’s written request pursuant to clause 4.6 of Canada Bay Local Environmental Plan 2013 prepared by Morphology Design Associates Pty Ltd and dated 7 November 2019 for a contravention of the maximum height development standard imposed by clause 4.3 of the Canada Bay Local Environmental Plan 2013 is upheld. (4)   The appeal is upheld. (5)   Development application DA 2018/0286 seeking the demolition of existing structures and construction of a boarding house with basement car parking at 9 Stuart Street, Concord West, is approved subject to the conditions contained at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – height standard non-compliance – cl 4.6 request – conciliation conference – agreement between the parties – orders
Legislation Cited:	Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Canada Bay Development Control Plan 2017
Category:	Principal judgment
Parties:	Ghazi Al Ali Architect Pty Ltd (Applicant) City of Canada Bay Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/51507
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 2018/0286 by City of Canada Bay Council (hereafter the Council) for demolition of an existing structures and construction of a boarding house with basement car parking on Lot 12 DP 6145, also known as 9 Stuart Street, Concord West (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979) for the deemed refusal of the DA.

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 16 October 2019. I presided over the conciliation conference. There were two objectors whom spoke at this conciliation on issues relating to: character; site suitability; parking; and ongoing operation.

4. At the conciliation conference, following expert discussion, the applicant sought to amend the DA, cl 4.6 written request and associated plans to: increase the rear setback; relocate the air conditioning condensers and fire boaster; and amend landscaping to increase deep soil zone functionality. Based on these amended DA and plans, together with the conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and grant consent to DA 2018/0286 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 2018/0286 under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); Canada Bay Local Environmental Plan 2013 (CBLEP). In addition, the Canada Bay Development Control Plan 2017 (CBDCP) is considered in the assessment of the proposed development. The parties agree that the amended plans, cl 4.6 written request and conditions of consent relate to the merits of the proposal.

7. Based on the amended plans and documents supporting the DA, the parties agree that the proposed development is consistent with the character of the local area and streetscape, which specifically satisfies the provisions of cll 29 and 30A of the SEPP ARH.

8. The parties agree that the relevant provisions of the CBLEP are addressed to their satisfaction by the supporting documents and amended plans to the (amended) DA under appeal. The site is located within the R3 medium density zone. The proposed development is permissible in the zone and as proposed, is not inconsistent with the zone objectives or relevant development standards, except cl 4.3 (height standard) of the CBLEP.

9. The parties explained that a portion of the roof ridge of the proposed development extends by 1.05m (equivalent to 12.3%) above the maximum height standard (of 8.5m), as specified in cl 4.3 of the CBLEP. Therefore, the parties agree that a cl 4.6 written request for variation of height is required for further consideration of the proposed development, pursuant to cl 4.6 of the CBLEP, and that the Court must also be satisfied of consistency with cl 4.6 to grant consent to the DA.

10. The parties agree, that as explained in the cl 4.6 written request, the non-compliant height of the proposed building does not result in a development that is out of character with the local area. The proposed development has a roof form and height consistent with adjoining developments at 11 and 13 Stuart Street, and is therefore compatible with the future desired character.

11. The parties accept that the height non-compliance is limited to the roof ridge exceeding by 0.7m and 1.05m from the front to rear of the site, respectively and not visibly perceived from the street.

12. There is minimal amenity impact to adjoining residences as a result of this non complaint feature, which is limited to a sliver of overshadowing to an adjoining (western) dwelling on an outdoor space and located above any windows. The cl 4.6 written request explains this does not result in loss of residential amenity to the adjoining residence.

13. The parties therefore agree that a variation of the non-compliance with the height development standard in cl 4.3 of the CBLEP is satisfied by the cl 4.6 written request, and that the requirements for a cl 4.6 variation of the development standard are satisfied.

14. Having reviewed the amended cl 4.6 written request, I agree that the cl 4.6 written request for height standard variation addresses the requirement of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the breach, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area and due to the perception of the structure from the street, the non-complaint roof form will not be a dominant feature as viewed from the main street frontage (Stuart Street) or result in loss of amenity, particularly overshadowing to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and other development standards, and height non-compliance will not be dominant in the streetscape.

15. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R3 zone) and the height standard (cl 4.3), as established in the CBLEP. The proposed height exceedance is therefore reasonable and necessary, that does not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is in the public interest.

16. I am satisfied that the requirements of cl 4.6 of the CBLEP have been addressed and that a variation in the height standard, pursuant to cl 4.3, is appropriate as proposed in the development. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the CBDCP are resolved to the satisfaction of the parties.

17. The parties agree that the requirements of the CBDCP are complied with, considering the amended plans and conditions of consent.

18. Based on the amended plans and supporting documents to the DA, the contentions are resolved to the satisfaction of the parties. The issue/s raised by the objectors are resolved to the parties’ satisfaction. No further notification of the amended DA and plans was made or required by the respondent, pursuant to the CBDCP.

19. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2018/0286 should be granted based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979.

20. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

21. The Court orders:

1. The Applicant is granted leave to rely on the amended plans and documentation referred to in condition 1 of the conditions of consent contained at Annexure ‘A’.

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

3. The Applicant’s written request pursuant to clause 4.6 of Canada Bay Local Environmental Plan 2013 prepared by Morphology Design Associates Pty Ltd and dated 7 November 2019 for a contravention of the maximum height development standard imposed by clause 4.3 of the Canada Bay Local Environmental Plan 2013 is upheld.

4. The appeal is upheld.

5. Development application DA 2018/0286 seeking the demolition of existing structures and construction of a boarding house with basement car parking at 9 Stuart Street, Concord West, is approved subject to the conditions contained at Annexure A.

………………………….

S Bish

Commissioner of the Court

Annexure A (481 KB)

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Decision last updated: 22 November 2019