Gobran v The Council of the City of Sydney

[2022] NSWLEC 1201

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gobran v The Council of the City of Sydney [2022] NSWLEC 1201

Hearing dates:

Conciliation conference on 5 - 6 April 2022

Date of orders:

19 April 2022

Decision date:

19 April 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld;

(2)   Development consent is granted to Development Application No D/2021/38 for the demolition and construction of a 2-storey dual occupancy with swimming pools, tree removal, landscaping and associated works including Torrens title subdivision, on land at 41 Asquith Avenue, Rosebery NSW 2018, subject to the conditions of consent contained at Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – dual occupancy – subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.119, 2.121

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

Sydney Local Environmental Plan 2012, cll 2.1, 2.7, 4.3, 6.21C, 7.14

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Shaheer Gobran (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
M Hanna (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2021/332296

Publication restriction:

No

Judgment

1. COMMISSIONER: The nature of proceedings: 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 refusal of development application No D/2021/38 seeking development consent to demolish the existing single swelling, construct a two storey dual occupancy, and subdivide the site (the Proposed Development) at 41 Asquith Avenue, Rosebery, legally described as Lot 811 in DP11841 (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 has been held on 5 April 2022. I have presided over the conciliation conference.

3. 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 and granting development consent to the development application subject to conditions.

4. 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 development application.

5. 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 to be cl 6.21C of the Sydney Local Environmental Plan 2012 (SLEP) in relation to design excellence and other provisions of the SLEP and various relevant Statement Environmental Planning Policies. The parties explained how the jurisdictional prerequisites have been satisfied in a joint agreed jurisdictional statement which I summarise below.

6. The landowner of the site on which the development is proposed provided their consent to the Development Application when it was lodged.

7. The Development Application was appropriately notified by the Respondent pursuant to the EPA Act between 11 February 2021 and 5 March 2021. 18 submissions were made to the Respondent in response, and these submissions have been considered by the Respondent and by the Court. The Court also heard from objectors onsite.

8. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed.

9. As outlined in the Statement of Environmental Effects prepared in support of the development application by Myriad Consulting Town Planning, the development site has been historically used as residential accommodation and there is no evidence of potentially contaminating activities occurring on site. Accordingly, there is no need to carry out a preliminary site investigation and I am satisfied that the land is not contaminated, and chapter 4 of SEPP Resilience has been considered and addressed.

10. The site is located within the designated hydrological catchment of Sydney Harbour and is subject to the provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Deemed SEPP) (SREP). The Sydney Harbour Catchment Planning Principles have been considered in the carrying out of development within the catchment. The site is within the Sydney Harbour Catchment and eventually drains into the Harbour. However, the site is not located in the Foreshores Waterways Area or adjacent to a waterway and therefore, with the exception of the objective of improved water quality, the objectives of the SREP are not applicable to the Proposed Development. I am satisfied that the Proposed Development is consistent with the controls contained with the SREP.

11. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument.

12. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) regulates the clearing of native vegetation on urban land and land zoned for environmental conservation/management that does not require development consent. The Proposed Development will not result in the clearing of any native vegetation or clearing that exceeds the biodiversity offsets scheme and does not involve clearing that is or forms part of a heritage item or a heritage conservation area, or is or forms part of an Aboriginal object or that is a known as an Aboriginal place of heritage significance.

13. The State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) contains provisions that are relevant to the Proposed Development pursuant to s 2.119 - Impact of Road Noise or vibration on non-road development found in Division 17, Subdivision 2: Development in or adjacent to road corridors and road reservations. The application is subject to s 2.121 of the SEPP Transport and Infrastructure as the site is adjacent to Southern Cross Drive, which has an annual average daily traffic volume of more than 20,000 vehicles and which the consent authority considers is likely to be adversely affected by road noise or vibration. Relevantly, the Proposed Development was referred to Transport for NSW who raised no objection to the proposal subject to conditions.

14. I next consider the relevant provisions of the SLEP.

15. The site is zoned R2 Medium Density Residential pursuant to the SLEP, and the Proposed Development is best characterised as a dual occupancy (attached) development which is permissible with consent within the R2 zone. The Proposed Development is consistent with the zone objectives and land use table at cl 2.1 of the SLEP.

16. Consent for the demolition of the existing dwelling is sought pursuant to cl 2.7 of the SLEP, and I am satisfied that the demolition of structures on site as sought as part of the development consent and will be carried out in accordance with the relevant standards and demolition plan.

17. The Proposed Development is consistent with the maximum height development standard of 7.5m pursuant to cl 4.3 of the SLEP and has been designed to address the conditions of the site and surrounding context, including the special character area and does not impact on any views to or from the site.

18. Finally, cl 7.14 of the SLEP relates to acid sulfate soils and applies to the Proposed Development as the site has been identified as containing Class 5 acid sulfate soil. The Proposed Development does not include any works that is below 5m Australian Height Datum and is not likely to lower the watertable below 1m Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land.

19. I am satisfied that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

20. I note that the parties agree that the amended proposal is compatible with the character of the local area and that the Proposed Development is of a bulk and scale that is commensurate with that envisaged by the prescribed standards and controls. In that regard, I now deal with the design excellence provisions of cl 6.21C of the SLEP which provides as follows:

6.21C   Design excellence

(1)  Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(2)  In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters—

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c)  whether the proposed development detrimentally impacts on view corridors,

(d)  how the proposed development addresses the following matters—

(i)  the suitability of the land for development,

(ii)  the existing and proposed uses and use mix,

(iii)  any heritage issues and streetscape constraints,

(iv)  the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  the bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii)  the achievement of the principles of ecologically sustainable development,

(ix)  pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x)  the impact on, and any proposed improvements to, the public domain,

(xi)  the impact on any special character area,

(xii)  achieving appropriate interfaces at ground level between the building and the public domain,

(xiii)  excellence and integration of landscape design.

21. The parties have provided the following table setting out the assessment against the design excellence matters required to be considered and I conclude that the Proposed Development satisfies the requirements of 6.21C of SLEP as follows:

6.21C Design Excellence	The proposal
(2) In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters—
(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,	The architectural design materials and detailing of the amended scheme are appropriate for the context of the site. The modified rear roof form alters the massing of the rear half of the site to represent a single storey with attic form, which is appropriate for the residential building type within the Rosebery Estate special character area. As such, the proposal is also appropriate for the location of the site.
(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain	The primary Asquith Avenue façade is considered to adhere to the design-based considerations within the Rosebery Estate-specific controls contained within Sydney DCP 2012. Further, development within the site such as the proposed pools belonging to both dwellings and the second roof form within the rear half of the site are largely indistinguishable from the frontage. As such, the form and external appearance are considered to improve the quality and amenity of the public domain.
(c) whether the proposed development detrimentally impacts on view corridors	The proposal will not detrimentally impact on view corridors.
(d) how the proposed development addresses the following matters—
(i) the suitability of the land for development	The land is considered suitable for the proposed development, subject to conditions.
(ii) the existing and proposed uses and use mix	The existing and proposed use of the site is appropriate, being a residential use. The mix of uses within the locality is predominantly residential, and the proposal is considered compatible with this character.
(iii) any heritage issues and streetscape constraints,	The proposal relates to the predominant streetscape character.
(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form	Not applicable as a tower is not proposed as part of this development.
(v) the bulk, massing and modulation of buildings	The integration of the upper ground level of the rear building form into a lowered attic roof form in the amended plans reduces the overall scale and bulk of the rear building form. This enables the development to exhibit appropriate massing and articulation.
(vi) street frontage heights	The height of the proposal from the frontage represents a single storey profile, which is considered appropriate.
(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity	The previously proposed balconies at the rear of the lower ground level have been removed. The scale of glazing has been substantially reduced and set back from the rear edge of the rear façade. Further, deep window seats now adjoin the rear glazing limiting viewing angles and opportunities for close-up overlooking from the living area. The proposal is acceptable in terms of overshadowing to neighbouring properties, complies with BASIX and NATHERS provisions, solar access provisions, and the proposed noise produced would not be out of keeping with noise reasonably expected in an urban context.
(viii) the achievement of the principles of ecologically sustainable development	The proposal satisfies BASIX and NATHERS requirements and as such constitutes ecologically sustainable development.
(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network	The proposal does not include works which would need to respond to these factors.
(x) the impact on, and any proposed improvements to, the public domain	The interface between the proposed driveways with the public domain are acceptable, subject to conditions.
(xi) the impact on any special character area	The scale, bulk and rear roof form proposed in the amended plans is appropriate for the context of the site, and respond to the principles of the Rosebery Estate special character area.
(xii) achieving appropriate interfaces at ground level between the building and the public domain	The interface between the proposal and the public domain at the frontage, while not technically being ground level on the site, is considered appropriate.
(xiii) excellence and integration of landscape design.	The proposed landscape design within the rear and front setbacks is appropriate for the integration with private open space and with the presentation of the dwelling to the streetscape, which emphasises a low density and landscaped character.

22. For the reasons given in this judgment, 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.

23. 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.

Notations:

24. The Court notes:

1. The Council of the City of Sydney, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending its development application per the documentation listed below:

Dwg No.	Sheet Name	Issue	Date
A) Architectural Plans prepared by AAUDA Pty Ltd
A01	Title Sheet	G	31 March 2022
A04	Site Plan	G	31 March 2022
A05	Lower Ground Floor Plan	G	31 March 2022
A06	Mid Ground Floor Plan	G	31 March 2022
A07	Upper Ground Floor Plan	G	31 March 2022
A08	Roof Plan	G	31 March 2022
A10	Section A	G	31 March 2022
A11	Section B	G	31 March 2022
A12	Section C	G	31 March 2022
A13	Section D	G	31 March 2022
A15	North and West Elevations	G	31 March 2022
A16	South and East Elevations	G	31 March 2022
A17	North Elevation – Detail	G	31 March 2022
A18	Site Section	G	31 March 2022
A19	Site Selection – Eastern Boundary	G	31 March 2022
A22	Demolition Plan	G	31 March 2022
A57	Finishes	G	31 March 2022
B) BASIX Certificate Number 1150415M_03
C) Arborist Report prepared by Scott Freeman of Arboriculture Australia, dated 4 March 2022, version 3.

2. The following amended application was uploaded to the NSW Planning portal on 4 April 2022 comprising the above amended plans otherwise referred to in Condition 1 of Annexure “A”. The portal reference number for the amended development application is PAN - 53251.

3. The Applicant has filed the amended application with the Court.

Orders:

25. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to Development Application No D/2021/38 for the demolition and construction of a 2-storey dual occupancy with swimming pools, tree removal, landscaping and associated works including Torrens title subdivision, on land at 41 Asquith Avenue, Rosebery NSW 2018, subject to the conditions of consent contained at Annexure “A”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A.pdf

**********

Decision last updated: 19 April 2022