Laurus Projects Pty Ltd v Port Macquarie-Hastings Council

[2022] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:

Laurus Projects Pty Ltd v Port Macquarie-Hastings Council [2022] NSWLEC 1497

Hearing dates:

Conciliation conference on 6 April, 6 and 16 May, 2 and 17 June, 12 August 2022

Date of orders:

15 September 2022

Decision date:

15 September 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant agrees to pay the Second Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $65,000 within 35 days of this agreement being signed by both parties.

(2) The appeal is upheld.

(3) Development Application DA2021-219.1 for the demolition of existing buildings, construction of a residential flat building comprising 44 units, including basement and ground level car parking, driveway, services, drainage and landscaping, a consolidation of allotments, and strata subdivision at 10 Pacific Drive, Port Macquarie, NSW 2444 (legally described as Lot 1 in DP 538077), 13 Pacific Drive Port Macquarie (legally described as Lot 2 in DP 538077), 16 Pacific Drive, Port Macquarie, NSW 2444 (Legally described as Lot A in DP 441800) and Lot 101 in DP 1244390, is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: residential apartment development in R3 Medium Density Residential zone – residential flat building – conciliation conference – agreement between parties - orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Land and Environment Court Act 1979, ss 34, 39

Port Macquarie Hastings Local Environmental Plan 2011, cll 4.3, 4.6, 7.2, 7.4, 7.5, 7.13

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3, ss 3.3, 3.5

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8, 4.6

State Environmental Planning Policy No 65 - (Design Quality of Residential Apartment Development), cll 28, 30

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Texts Cited:

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

Category:

Principal judgment

Parties:

Laurus Projects Pty Ltd (Applicant)
Port Macquarie-Hastings Council (First Respondent)
Northern Regional Planning Panel (Second Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
H El-Hage (Second Respondent)

Solicitors:
Addisons (Applicant)
Department of Planning (Second Respondent)

File Number(s):

2021/349871

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant in these proceedings seeks development consent for construction of a residential flat building comprising 44 units, basement car parking, driveway, services and landscaping and a consolidation of allotments, and strata subdivisions at 10 Pacific Drive, Port Macquarie.

2. To this end, the Applicant lodged Development Applicant DA 2021/219 with the Port Macquarie-Hastings Council (the Council) on 30 March 2021, which was subsequently refused by the Northern Regional Planning Panel on behalf of the Council, on 30 November 2021.

3. The Applicant lodged an appeal against the deemed refusal of the DA under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 proceedings on 9 December 2021.

4. 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 6 April 2022, and at which I presided.

5. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.

6. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted further adjournments so that additional amendments agreed between the parties could be publicly notified between 11 July 2022 and 7 August 2022, in accordance with the Council’s Community Participation Plan, after which public submissions were considered.

7. The decision of the parties involves the Court upholding the appeal and granting development consent to the development application subject to conditions.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 12 August 2022. A further signed agreement was filed, corrected, on 25 August 2022.

9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

10. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [46], and as follows:

11. The site is located within an R3 Medium Density Residential zone, according to the Port Macquarie Hastings Local Environmental Plan 2011 (PMHLEP), in which residential flat buildings are permitted with consent.

12. Objectives for development in the R3 zone are:

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

•  To provide a variety of housing types within a medium density residential environment.

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

The height standard is exceeded

13. The proposed development exceeds the height standard of 17.5m at cl 4.3 of the PMHLEP, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the PMHLEP by Land Dynamics dated 27 June 2022.

14. The exceedance occurs at the lift overruns in the approximate centre of the two buildings comprising part of the development. The exceedance reaches its maximum height at 19.2m, or 1700mm above that permitted by the standard.

15. The written request relies upon four of the tests established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 to assert that compliance with the height standard is unreasonable or unnecessary pursuant to cl 4.6(3)(a) of the PMHLEP. These are:

1. Firstly, that the objectives of the height standard at cl 4.3 are achieved notwithstanding non-compliance with the numerical standard,

2. Secondly, that the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary; and

3. Thirdly, that the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable.

4. Fourthly, that the standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents that depart from the standard.

16. The relevant objectives of cl 4.3 of the PMHLEP are:

(a)  to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality,

(b)  to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

…

(d)  to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan.

17. With respect to the first test, the written request asserts, in summary, that the objectives of the height standard at cl 4.3 are achieved because:

1. In respect of objective (a), controls in respect of floor space ratio (FSR), and the recent approval by the Council of a 7-storey residential flat building in the vicinity of the site reflect the Council’s Urban Growth Management Strategy 2017-2036 for apartment living in the R3 zone along Pacific Drive, which is the desired future character of the area.

2. The bulk and scale of the proposal is within the allowable FSR, reflects the topography of the site, and respects the lower scale of residential development to the south and west of the site by transitioning down in height.

3. In respect of objective (b), visual impact is minimised by limiting the exceedance to lift overruns and not to habitable rooms, dividing the development into two tower forms, and providing a separation between through which views, unaffected by the exceedance, are permitted from existing development. Privacy impacts to the west and south are minimised by the use of solid balustrades and screening devices that preclude certain downward sightlines from the proposed development to existing development.

4. In respect of objective (d), the design of the proposal provides a transition in form and land use intensity by firstly separating the tower elements into Building A and Building B, and secondly by ensuring a setback to the west of 9m at the ground floor of Building A and B, but for screening elements, and greater than 12m at the upper most floor level in the southern tower, Building B. To the southern property that is also within the R3 zone, the setback is 6m.

18. As I accept the objectives of the height standard are achieved notwithstanding non-compliance with the numerical standard, it is unnecessary to consider the alternative tests set out at [15]. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, at [22], an applicant does not need to establish all of the ways. It may be sufficient to establish only one way.

19. Next, the written request sets out eleven grounds it relies on as sufficient environmental planning grounds to justify the contravention of the standard, that may be summarised as follows:

1. The exceedance is minor in extent, and is limited to a portion of the uppermost level of the proposal, which is largely due to the steeply sloping topography of the site.

2. The proposal complies with controls dealing with internal and external privacy, amenity and solar access, consistent with an intensification of residential density in the R3 zone without adverse impacts arising from the exceedance.

3. Consideration of the desired future character is demonstrated through compliance with the applicable FSR, separation of the two towers and stepping down of the built form to the west.

4. The exceedance is likely to be imperceptible from the public domain, and does not overlook neighbouring properties due to the elevation of the height plane causing the exceedance to be at the upper reaches of the lift overrun and fire stairs, in the centre of the tower, where no sightline can be obtained.

20. I am satisfied that the grounds set out in the written request are sufficient environmental planning grounds to justify the contravention of the height standard. Given the steep slope in topography, I note the separation of the two towers results in firstly, visual relief for properties located to the west of the site, while secondly, contributing to the height exceedance on Tower B, notwithstanding the stepping down of the built form to the south when compared to that of Tower A.

21. Furthermore, I am satisfied that the objectives of the R3 zone to provide for the housing needs of the community, and for the variety of housing types, within a medium density residential environment, are achieved.

22. As I am satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard, I am also satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(4)(a) of the PMHLEP.

23. Likewise, as the written request is consistent with the objectives of the height standard, and of the R3 zone, I am also satisfied that the proposed development is in the public interest. In arriving at this state of satisfaction, I consider the exceedance to be minor in its extent, and negligible in its visual or other impact. The development does not seek to exceed the FSR, and achieves or exceeds the setbacks to adjoining properties required by the Apartment Design Guide, including where adjacent to a different zone as in this case to those properties to the west.

24. Clause 4.6(4)(b) of the PMHLEP requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.

25. That said, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.

26. I have considered whether the contravention of the height standard raises any matter of significance for State or regional environmental planning, and whether there is a public benefit of maintaining the development standard. I conclude that no matter of significance arises, and I consider there to be a public benefit served by upholding the written request for the reasons set out above.

Port Macquarie Hastings Local Environmental Plan 2011

27. The development proposes basement car parking for which excavation is required. On the basis of the Landscape Concept Plans prepared by Land Dynamics dated 21 June 2022, the Stormwater Management Plan by the same author dated June 2022, the Geotechnical Investigation prepared by EI Australia dated 31 May 2022, and agreed conditions of consent, I consider those matters at cl 7.2(3) of the PMHLEP to be addressed.

28. While the site is not identified as being located within a flood plain pursuant to cl 7.4 of the PMHLEP, the Applicant has provided an Extreme Rainfall Event Assessment at Section 4.10 of the Stormwater Management Plan, and documented a stormwater pump station in the south west corner of the site to capture additional flows for storage in the OSD, and a weir documented at Appendix B of the Stormwater Management Plan.

29. Notwithstanding public submissions to the contrary, the site is not identified as a koala habitat on the relevant map at cl 7.5(2) of the PMHLEP.

30. The site is within an existing urban area, and essential services are documented in the Stormwater Management Plan prepared by Land Dynamics, and in the Electrical design prepared by Midstate Power dated 17 February 2018. On this basis, I am satisfied that all essential services will be available when required, in accordance with cl 7.13 of the PMHLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

31. The site is identified on the Coastal Wetlands and Littoral Rainforests Area Map at s 2.8 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), as being within proximity of Littoral Rainforest. On the basis of the statements made at page 26 of the Statement of Environmental Effects, prepared by Land Dynamics dated 27 June 2022, I accept that no threatened species or endangered ecological communities adversely affected by the proposed development, and that the Stormwater Management Plan documents means by which nutrient runoff to creek networks. Drainage is not directed to the area of rainforest. Accordingly, I accept that the development will not adversely affect the biophysical, hydrological or ecological integrity of, or the quantity or quality of surface water flows to, the coastal Littoral Rainforest, pursuant to s 2.8 of the Resilience and Hazards SEPP.

32. The Resilience and Hazards SEPP applies to the site, and the Applicant relies upon a Preliminary Site Investigation Report prepared by EI Australia dated 16 December 2020, which concludes the site is suitable for the proposed development in accordance with s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

33. Chapter 3, Koala Habitat Protection 2020, of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 does not apply to the site for the following reasons:

1. Firstly, the site is within the R3 zone and so is excluded by operation of s 3.3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 that otherwise applies to land zoned RU1 Primary Production, RU2 Rural Landscape and RU3 Forestry.

2. Secondly, as the site is 2,979m², it has a total area of less than 1 hectare. Accordingly, s 3.5(c) of the Biodiversity and Conservation SEPP excludes the site from application of those provisions.

34. Notwithstanding the above, the Applicant relies upon a Koala Assessment Report prepared by Biodiversity Australia Pty Ltd dated January 2021 which concludes the site provides no ecological function to the local Port Macquarie Koala population for foraging, connectivity, shelter or any other ecological function.

State Environmental Planning Policy No 65 - (Design Quality of Residential Apartment Development)

35. As the proposal is for a residential flat building, the provisions of State Environmental Planning Policy No 65 - (Design Quality of Residential Apartment Development) (SEPP 65) apply.

36. Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following:

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

37. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

38. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr Nigel Dickson (Reg No.5364) is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide, where not otherwise addressed in this judgment.

39. On the basis of the design statement prepared by Mr Dickson, I am also of the opinion that adequate regard has been had to the design quality principles and to the objectives specified in the Apartment Design Guide, in accordance with cl 30(2) of SEPP 65.

Rural Fires Act 1997

40. The site is identified as Bushfire Prone land, and approval under s 100B of the Rural Fires Act 1997 is required. Consequently, the development is also identified as integrated development pursuant to s 4.46 of the EPA Act. A Bushfire Hazard Assessment supports the proposal, prepared by David Pensini Building Certification and Environmental Services dated July 2022, and a Bushfire Safety Authority was issued by the NSW Rural Fire Service dated 10 August 2022.

State Environmental Planning Policy (BASIX) 2004

41. I am satisfied that a BASIX certificate No. 1184689M_02 dated 13 May 2022 has been prepared by Taylor Smith Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

42. 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.

43. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

44. I note the development application, as amended, was notified between 11 July 2022 and 7 August 2022, in accordance with the Council’s Community Participation Plan, and that public submissions are address in the amended application and in agreed conditions of consent.

45. The Court also notes:

1. That the Northern Regional Planning Panel, as the relevant consent authority has, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agreed to the following amendments to development application DA 2021-219.1:

Title of document					Date
00	Cover letter					27 June 2022
0	Statement of Environmental Effects Proposed Residential Flat Building Revision H					27 June 2022
1	Architectural Plans					20 June 2022
	Drawing no.		Name	Rev	Dated
	DA-0-001		Cover Sheet	E	20 June 2022
	DA-0-002		Project Summary	E	20 June 2022
	DA-0-102		Site Analysis	E	20 June 2022
	DA-0-104		Survey	E	20 June 2022
	DA-0-210		Basement Plan	E	20 June 2022
	DA-0-211		Lower Ground Plan	E	20 June 2022
	DA-0-212		Ground Floor Plan	E	20 June 2022
	DA-0-213		Level 1 Floor Plan	E	20 June 2022
	DA-0-214		Level 2 Floor Plan	E	20 June 2022
	DA-0-215		Level 3 Floor Plan	E	20 June 2022
	DA-0-216		Level 4 Floor Plan	E	20 June 2022
	DA-0-217		Level 5 Floor Plan	E	20 June 2022
	DA-0-218		Roof Plan	E	20 June 2022
	DA-0-302		Elevations 1	E	20 June 2022
	DA-0-303		Elevations 2	E	20 June 2022
	DA-0-401		Section 1 & 2	E	20 June 2022
	DA-0-402		Section 3 & 4	E	20 June 2022
	DA-0-501		Adaptable Units	E	20 June 2022
	DA-0-502		Adaptable Units 2	E	20 June 2022
	DA-0-503		Adaptable Units 3	E	20 June 2022
	DA-0-901		GFA Diagrams – Sheet 1	E	20 June 2022
	DA-0-911		Solar & CV – Sheet 1	E	20 June 2022
	DA-0-941		External Finishes & Materials	E	20 June 2022
	DA-0-950		Height Plane Diagram	E	20 June 2022
	DA-0-951		Shadow Analysis – Sheet 1	E	20 June 2022
	DA-0-952		Shadow Analysis – Sheet 2	E	20 June 2022
	DA-0-961		Views from the sun – Sheet 1	E	20 June 2022
	DA-0-962		Views from the sun – Sheet 2	E	20 June 2022
	DA-0-963		Views from the sun – Sheet 3	E	20 June 2022
	DA-0-964		Views from the sun – Sheet 4	E	20 June 2022
	DA-0-965		Views from the sun – Sheet 5	E	20 June 2022
	DA-0-966		Views from the sun – Sheet 6	E	20 June 2022
	DA-0-967		Views from the sun – Sheet 7	E	20 June 2022
	DA-0-971		Macquarie Pl View	E	20 June 2022
	DA-0-972		5-7 Home St View 1	E	20 June 2022
	DA-0-973		5-7 Home Street View 2	E	20 June 2022
	DA-0-976		Analysis of Privacy Impacts – Building A - Plan	E	20 June 2022
	DA-0-977		Analysis of Privacy Impacts – Building B - Plan	E	20 June 2022
	DA-0-978		Analysis of Privacy Impacts – Building A - Section	E	20 June 2022
	DA-0-979		Analysis of Privacy Impacts – Building B - Section	E	20 June 2022
	DA-0-980		Window Schedule – Sheet 1	E	20 June 2022
	DA-0-981		Window Schedule – Sheet 2	E	20 June 2022
	DA-0-982		Deep Soil and Landscape	E	20 June 2022
2	Design Verification and ADG Compliance Table, Revision C						22 June 2022
3	Landscape Concept Plan Set						21 June 2022
	Drawing no.	Name		Rev	Dated
	0001	Landscape Layout – Lower Ground Floor		F	21 June 2022
	0002	Landscape Layout – Ground Floor Plan		F	21 June 2022
	0003	Landscape Layout – Entry & Pool Area		F	21 June 2022
	0004	Landscape Layout – Roof Garden Levels		F	21 June 2022
	0005	Concept Planting Plan to Lower Ground & Ground Floor Common Areas		F	21 June 2022
	0006	Landscape Images		F	21 June 2022
	0007	Landscape Section AA		F	21 June 2022
	0008	Landscape Section B		F	21 June 2022
	0009	Landscape Section C		F	21 June 2022
	0010	Landscape Section D		F	21 June 2022
	0011	Landscape – Garden Maintenance Access Plan		F	21 June 2022
4	Stormwater Management Plan 5115 – SWMP and Appendices, Revision H						14 June 2022
5	Geotechnical Investigation E24947-G03, Revision 1						31 May 2022
6	Traffic and Parking Assessment, Revision 5						14 June 2022
7	Acoustic Assessment, Revision 3						11 May 2022
8	BASIX Certificate, Assessor Certificate and stamped plans						13 May 2022
9	Structural Report, Revision 7						6 June 2022
10	BCA & Access Assessment, Revision 2.2						13 May 2022
11	Waste Management Plan, Revision E						4 May 2022
12	DCP Compliance Tables, Revision D						12 May 2022
13	Plan of consolidation 5115StG2
14	Fire Engineering Letter						13 May 2022
15	Updated Clause 4.6 Request for variation to clause 4.3 of PM-H LEP 2011, Revision E						27 June 2022
16	Strata subdivision Plan set, Revision E
17	Draft Updated Easement Plan 5115EMT						12 May 2022
18	Conceptual Plans, Revision F						23 May 2022
18	Drawing No		Name	Rev	Dated
DA-0-212		Ground Floor Plan Development Feasibility	F	23 May 2022
DA-0-213		Level 1 Floor Plan Development Feasibility	F	23 May 2022
DA-0-950		Height Plane Diagram	F	23 May 2022
19	Survey Plan, Revision E						23 June 2022
20	Koala Assessment Report for Residential Development						January 2021
21	Arborist Report						2 February 2021
22	Arboricultural Impact Assessment Report and Addendum						25 June & 12 August 2021
23	Preliminary Site Investigation
24	Bushfire Hazard Assessment, Revision 3						27 July 2022
25	Electrical Design						17 February 2018

2. The Applicant uploaded the amended application on the NSW Planning Portal on 6 July 2022.

Orders

46. The Court orders that:

1. The Applicant agrees to pay the Second Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $65,000 within 35 days of this agreement being signed by both parties.

2. The appeal is upheld.

3. Development Application DA2021-219.1 for the demolition of existing buildings, construction of a residential flat building comprising 44 units, including basement and ground level car parking, driveway, services, drainage and landscaping, a consolidation of allotments, and strata subdivision at 10 Pacific Drive, Port Macquarie, NSW 2444 (legally described as Lot 1 in DP 538077), 13 Pacific Drive Port Macquarie (legally described as Lot 2 in DP 538077), 16 Pacific Drive, Port Macquarie, NSW 2444 (legally described as Lot A in DP 441800) and Lot 101 in DP 1244390, is determined by the grant of consent subject to the conditions set out in Annexure A.

……………………

T Horton

Commissioner of the Court

349871.21 Annexure A (250515, pdf)

**********

Decision last updated: 15 September 2022