Land Development Solutions Pty Ltd v Newcastle City Council

[2024] NSWLEC 1547

Land and Environment Court

New South Wales

Medium Neutral Citation:

Land Development Solutions Pty Ltd v Newcastle City Council [2024] NSWLEC 1547

Hearing dates:

Hearing and conciliation conference on 21 August 2024

Date of orders:

05 September 2024

Decision date:

05 September 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 within 21 days of the date of these orders.

(2) The appeal is upheld.

(3) Development Application No. DA2022/01151 for the demolition of existing structures, tree removal and erection of a part 2, part 3 storey multi dwelling housing development comprising 6 dwellings and associated strata subdivision at 73 Carolyn Street, Adamstown Heights being Lot 14 DP 203178 is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – strata subdivision – multi-dwelling housing – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021 ss 27, 38

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

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

Newcastle Local Environmental Plan 2012 cll 4.3, 4.4, 4.6, 6.1, 6.2

Texts Cited:

Newcastle City Council’s Community Participation Plan 2019

Category:

Principal judgment

Parties:

Land Development Solutions Pty Ltd (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
Long (Applicant)
Seton (Respondent)

Solicitors:
Long Legal Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/31824

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Newcastle City Council, of development application DA2022/01151 which seeks consent for the demolition of existing structures, and erection of a part 2, part 3 storey multi-dwelling housing development, comprising of 7 dwellings, strata subdivision and tree removal at 73 Carolyn Street, Adamstown Heights, Lot 14 in DP203178. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The hearing commenced on site on 21 August 2024. Oral submissions were made by three local residents prior to the site view, and then the hearing commenced at Newcastle Local Court. At this point, the parties advised that they had reached an in-principle agreement in the matter, and requested the Court list the matter for a further conciliation conference. Subsequently, the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on the same day, over which I presided.

3. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. As part of this decision the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Regs), to the applicant amending the development application. These amendments included:

1. A reduction in the number of units from 7 to 6;

2. Increased building setbacks;

3. Relocation of the garages of units 1 and 2 to the rear of these dwellings;

4. Upper floors recessed on units 1 and 2;

5. Roof pitch, materials and finishes modified;

6. Increased landscaping.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified in accordance with the Newcastle City Council’s Community Participation Plan 2019 from 13 October to 1 November 2022, during which time twenty submissions were received. Following amendment of the application, renotification occurred between 11-25 August 2023. Seventeen submissions were received in this time.

8. Based on the information contained in the amended application, the expert evidence in the joint reports filed with the Court, and the parties’ submissions, I accept that the proposed development adequately responds to the concerns raised in these submissions, including (but not limited to) issues relating to stormwater, overshadowing, privacy, traffic, trees, earthworks and permissibility, all of which were discussed in the conciliation conference.

9. The subject site is zoned R2 Low Density Residential under the Newcastle Local Environmental Plan 2012 (NLEP), within which development for the purposes of residential accommodation is permissible with consent. Residential accommodation is defined in the dictionary of the NLEP as ‘a building or place used predominantly as a place of residence and includes…multi dwelling housing’. The proposed multi-dwelling housing is therefore permissible in this zone.

10. The objectives of the R2 zone are as follows:

“• To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.”

11. In providing low-density residential accommodation of a type that is envisaged in the zone, the development as amended provides for the housing needs of the community within a low density environment. From the parties’ submissions and the information contained in the amended application, I accept that the proposed development accommodates a diversity of housing form that respects the amenity, heritage and character of surrounding development, and the quality of the environment, and is therefore consistent with the objectives of this zone.

12. Pursuant to NLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development complies with this development standard, as demonstrated on architectural drawings 300 rev P19, 301 rev P20, 302 rev P16, and 303 rev B by Elk Designs.

13. NLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.6:1. The proposed development exceeds with this development standard with a maximum FSR of 0.63:1, or a 4.5% exceedance.

14. As a result of this exceedance, cl 4.6(3) of the NLEP allows the applicant to request a contravention of this development standard through the submission of a document. This document must demonstrate that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicant has submitted a written request prepared by Land Development Solutions dated 30 July 2024 (the cl 4.6 request). Pursuant to NLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the FSR development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify exceeding the development standard by demonstrating that:

1. The exceedance is the result of the proposal for six smaller dwellings, offering a different and yet contextually appropriate housing type within a well-serviced area.

2. The exceedance of FSR is minor in nature in both qualitative and quantitative terms and does not result in any adverse impacts on adjoining properties. Further, the development meets all other relevant development controls, and is therefore considered to be of the type and scale that is envisaged by the controls.

3. The contravention is therefore justified by a lack of adverse impact on the neighbouring residents, by the breach of the standard being minor in nature, and by the resulting compatibility of the development with both the zone and the locality.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

15. The site is not identified as a heritage item, nor located within a heritage conservation area.

16. The site is also not identified in the flood planning area.

17. Pursuant to NLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 500m of Class 1, 2, 3 or 4 land that is below 5m AHD. From this, no acid sulfate soils management plan is required, and the requirements of this clause are satisfied.

18. From the architectural drawings, the information contained in the Statement of Environmental Effects (SEE) and the parties’ submissions, I accept that the earthworks-related matters listed in NLEP cl 6.2 have been adequately considered, and the objectives of this clause are met.

19. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the SEE, the Council’s development assessment report and the parties’ submission, I accept that the subject site has been historically used for residential purposes, and there is no evidence of any potentially contaminating activities. I subsequently accept that the site is suitable for the intended, continued, residential use.

20. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 and the requirement of s 27 of the EPA Reg. Compliance with the commitments within this certificate is further required prior to the issue of any occupation certificate through a condition of consent.

Conclusion

21. For these reasons, 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.

22. 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.

23. The Court notes that:

1. Newcastle City Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA2022/01151 in accordance with the plans and documents listed below:

Plan name		Drawing Number	Prepared by	Dated
Architectural Plans				Issue
Cover Sheet		DA000	ELK Designs	P10
Site Analysis Plan		DA010	ELK Designs	B
Demolition Plan		DA020	ELK Designs	B
Site Plan		DA030	ELK Designs	P20
Site Coverage Plan		DA035	ELK Designs	P17
Lower Ground Floor		DA100	ELK Designs	P14
Ground Floor		DA110	ELK Designs	P15
First Floor		DA120	ELK Designs	P15
Second Floor		DA130	ELK Designs	P15
Roof Plan		DA150	ELK Designs	P8
Elevations		DA300	ELK Designs	P19
Elevations		DA301	ELK Designs	P20
Elevations		DA302	ELK Designs	P16
Elevations		DA303	ELK Designs	B
External Finishes		DA350	ELK Designs	P4
Sections		D400	ELK Designs	P17
Sections		DA401	ELK Designs	P12
External Shadow Diagrams		DA900	ELK Designs	P7
External Shadow Diagrams		DA901	ELK Designs	P7
Sediment Control		DA960	ELK Designs	B
Landscape Plans
Site Analysis Plan		1 of 3	Tolero Landscape Design	1 July 2024
Landscape Plan		2 of 3	Tolero Landscape Design	1 July 2024
Specification Plan		3 of 3	Tolero Landscape Design	1 July 2024
Civil Plans
Cover Sheet & Notes		C 01	CivilCol Consulting Pty Ltd	Rev 04
Sediment & Erosion Control Plan		C 02	CivilCol Consulting Pty Ltd	Rev 05
Sediment & Erosion Control Details		C 03	CivilCol Consulting Pty Ltd	Rev 04
Stormwater Management Concept Plan		C 04	CivilCol Consulting Pty Ltd	Rev 06
Stormwater Management Details Sheet 1 of 2		C 05	CivilCol Consulting Pty Ltd	Rev 03
Stormwater Management Details Sheet 1 of 2		C 06	CivilCol Consulting Pty Ltd	Rev 06
Driveway Details		C 07	CivilCol Consulting Pty Ltd	Rev 04
Earthworks Benching (Cut/Fill) Plan		C 1.01	CivilCol Consulting Pty Ltd	Rev 01
Strata Plan
Strata Subdivision Plan Sheets 1-5		-	Jason Lee Harman	-
Supporting Documentation
BASIX Certificate No. 1328044M_02	Building Sustainability Assessments			13 May 2024
Cl 4.6 Written Variation Request	Land Development Solutions			30 July 2024
NatHERS Certificate Nos. #HR-LKF7BP-01, #HR-409X9H-01, #HR-E1GQAZ-01, #HR-YDKPNC-01, #HR-DBLTSH-01, #HR-54GQ9N-01 and #HR-NMD3OW-01	ELK			13 May 2024
Tree Impact Assessment	Vivianne Bleiker			8 May 2024
Traffic & Parking Assessment	Intersect Traffic			December 2023
Waste Management Plan	Land Development Solutions			April 2024

24. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 within 21 days of the date of these orders.

2. The appeal is upheld.

3. Development Application No. DA2022/01151 for the demolition of existing structures, tree removal and erection of a part 2, part 3 storey multi dwelling housing development comprising 6 dwellings and associated strata subdivision at 73 Carolyn Street, Adamstown Heights being Lot 14 DP 203178 is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

E Washington

Commissioner of the Court 

Annexure A

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Decision last updated: 05 September 2024