Mackenzie Architects International Pty Ltd v Liverpool City Council

[2022] NSWLEC 1677

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Liverpool City Council [2022] NSWLEC 1677

Hearing dates:

Conciliation conference on 28 November 2022

Date of orders:

06 December 2022

Decision date:

06 December 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [31].

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15,4.16

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

Liverpool Local Environmental Plan 2008 cll 2.3, 2.7, 4.3, 4.6, 7.31

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 13, 16, 17

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 11

State Environmental Planning Policy (Housing) 2021

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.120

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development cl 28

Texts Cited:

Apartment Design Guide 2015

Development Near Rail Corridors and Busy Roads – Interim Guideline 2008

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Pearman (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Yates Law Pty Ltd (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/101309

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Liverpool City Council's deemed refusal of Development Application DA-1231/2021 (DA).

2. The DA is for the demolition of existing buildings and construction of a five storey residential flat building development, containing 30 residential units (including 15 affordable rental units), with one level of basement parking at 24 – 28 Willan Drive Cartwright, legally described as Lot 350, Lot 351, Lot 352 in DP 227167 (site).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 November 2022, and at which I presided. At the conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on amending plans. In regard to the amendments I note as follows:

• The applicant has amended the application with the consent of Council pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000.

• The applicant lodged the amendments to the development application on the NSW planning portal on 25 November 2022.

• The applicant filed a copy of the amended development application on 25 November 2022.

• The application as now amended is represented, relevantly, in proposed Condition 1 (see Annexure A).

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it 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. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties provided an agreed statement of jurisdictional prerequisites on 25 November 2022 to assist in that regard. Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below.

Jurisdiction

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

5. SEPP ARH applies to the proposal under the savings provisions of State Environmental Planning Policy (Housing) 2021. The parties agree, and I accept, that the proposal is “in-infill affordable housing” under Div 1. Here I note the advice of the parties that the site is in an accessible area (within 280m walking distance to a regularly serviced bus stop).

6. Clause 13(2)(a)(i) provides a floor space ratio (FSR) bonus of 0.5:1 if the percentage of the gross floor area (GFA) of the development that is used for affordable housing is 50 per cent or higher. The total GFA as proposed is 2569.04 m². The proposal allocates 1,291.58 m² (50.3% of GFA - 15 units) for affordable housing. Thus the 0.5:1 FSR bonus applies.

7. Pursuant to cl 16A, a “consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.” I have given consideration to this question, noting the site inspection undertaken by myself on 1 August 2022, during an earlier conciliation exercise in relation to this matter.

8. Relevant to cl 17, I note the advice of the parties that the affordable housing would be managed by a community housing provider and 1,291.58 m² (50.3% - 15 units) of the GFA will be for affordable housing retained for 10 years from issue of the occupation certificate. This arrangement is confirmed in proposed Condition 122.

State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development 2002 (SEPP 65) (and associated Apartment Design Guide 2015)

9. A design verification statement (DVS) dated 5 October 2022 and signed by a registered architect has been prepared, addressing the SEPP 65 design quality principles and demonstrating how the objectives of the Apartment Design Guide (ADG) have been achieved.

10. In consideration of the matters raised in cl 28(2) of SEPP 65, I note the following:

• the parties have provided me with minutes of the Liverpool City Council design excellence panel meeting of 9 June 2022, which gave consideration to the subject application. I have taken consideration of these minutes.

• I have taken into consideration the design quality of the development when evaluated in accordance with the design quality principles and the ADG.

11. Having regard to cl 30(2) it is clear to me that it has been demonstrated that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria.

State Environmental Planning Policy (Resilience and Hazards) 2021 - Chapter 4 Remediation of Land

12. I note that the site was historically used for agricultural, market gardening and residential purposes and that matters pertaining to contamination are dealt with in the Stage 2 Detailed Site Contamination Investigation dated 27 September 2022 prepared by Geo-Environmental Engineering. I have considered whether the site is contaminated, and accept the advice of the Detailed Site Contamination Investigation that the site is suitable for the proposed land use. The requirements of s 4.6 have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021 – Chapter 2 Infrastructure (Infrastructure SEPP)

13. Section 2.120(2) requires the consent authority to take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette. The Department of Planning circular Development Near Rail Corridors and Busy Roads – Interim Guideline has been taken into consideration. In this regard I note the acoustic report by Acoustic, Vibration and Noise Pty Ltd dated 16 August 2021 (acoustic report) (Class 1 Application filed 8 April 2022 Tab 3 Section 4.2).

14. Section 2.120(3) provides if the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded—

“(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.”

15. The acoustic report recommends mitigation measures to ensure noise levels to the dwellings meets the requirements contained in clause 102(3). Here I note Section 10 of the acoustic report and proposed Condition 128.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 – Chapter 11 Georges River Catchment

16. I accept the advice of the parties that Chapter 11 continues to apply to the application. I have taken into account both the general principles (as nominated at s 11.6) and the specific planning principles as nominated. I accept the advice of the parties that the proposal would not detract from the relevant principles, given the nature of the development and the environmental safeguards proposed, including the drainage concept requirements and erosion and sediment controls that will be in place throughout the construction phase of the development.

Liverpool Local Environmental Plan 2008 (LLEP)

17. The site falls within R4 – High Density Residential Zone and the proposed development is permissible within the zone. Clause 2.7 provides that demolition is permissible with consent.

18. In accordance with cl 2.3(2) of the LEP, I have had regard to the zone objectives.

19. Clause 4.3 prescribes that the maximum height shown for the Land on the Height of Buildings Map is 15.0m, which is contravened. I consider the contravention below.

20. Clause 4.4 prescribes a maximum floor space ratio development standard of 1:1. Clause 13(2)(a)(i) of SEPP ARH provides a floor space ratio bonus of 0.5:1. The applicable FSR control is therefore 1.5:1 which the proposal does not exceed.

21. Clause 7.31 applies as earthworks are proposed. A Salinity and Geotechnical Investigation Report by Geo-Environmental Engineering dated 27 September 2022 has been prepared (Tab 4 Notice of Motion filed on 5 October 2022). The matters in clause 7.31 have been considered.

Consideration of development standard contravention

22. As indicated above, cl 4.3 of LLEP establishes a maximum building height of 15m. The proposal would have a height of 15m measured to the roof form and 15.645m measured to lift overrun. The parties say this “minor variation” has no significant environmental impact.

23. A written request prepared by Chapman Planning Pty Ltd and dated 4 October 2022, was lodged pursuant to cl 4.6 of LLEP. It sought to establish that compliance with the standard is unreasonable and unnecessary, and that there were sufficient environmental planning grounds to justify the contravention, as required under cl 4.6(4)(a)(i) of LLEP. The written request has adequately addressed the matters required to be demonstrated. The written request establishes that compliance with the standard is unreasonable and unnecessary because the proposal would meet the objectives of the height of building development standard. It does so by describing the quality of urban form as proposed, highlighting the minor scale of the contravention and the fact that it would bring no noticeable impacts in regard to exposure to the sky and sunlight. The proposed five story height is consistent with height control intentions. The written request also establishes that there are sufficient environmental planning grounds to justify the contravention. The most relevant point, for me, is that the lift overrun, as the contravening element, would not be visually discernible from the public domain given its location central to the roof level.

24. Further, I am satisfied, based on the arguments put in the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b), but note that I have considered the matters in cl 4.6(5) of LLEP in coming to my conclusions in regard to the contravention and find no matters of significance arise in regard to these matters.

25. The states of satisfaction required by cl 4.6 of LLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control in LLEP.

Other provisions of s 4.15(1) of the EPA Act

26. Liverpool Development Control Plan 2008 (LDCP) applies. I note that the Class 1 application works through LDCP provisions (Tab 14), jurisdictionally, nothing turns on this policy instrument. The requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.

27. The parties advise the proposal was notified in accordance with requirements. The only objecting submissions was in regard to traffic and parking related matters. I have taken into consideration objecting submissions in accordance with the requirement of s 4.15(1)(d) of the EPA Act.

28. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

29. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and 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.

30. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

31. The Court orders that:

1. The request pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008 to vary the development standard for height of buildings contained in clause 4.3 prepared by Chapman Planning Pty Ltd dated 4 October 2022 is upheld.

2. The appeal is upheld.

3. Development Application DA-1231/2021 for the demolition of the existing single detached dwellings and their annexure buildings, and construction of a five storey infill affordable residential flat building development with one level of basement parking on land at 24 – 28 Willan Drive, Cartwright is approved, subject to the conditions contained in the annexure marked "A".

.……………………………..

P Walsh

Commissioner of the Court

101309.22 Annexure A (1263475, pdf)

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Decision last updated: 06 December 2022