Mackenzie Architects International Pty Ltd v Northern Beaches Council

[2023] NSWLEC 1440

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Northern Beaches Council [2023] NSWLEC 1440

Hearing dates:

Conciliation conference on 1 and 22 June, 5 and 28 July 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders are:

(1) See orders at [51].

Catchwords:

DEVELOPMENT APPLICATION – shop top housing development in E1 Local Centre zone – conciliation conference – agreement between parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, ss 29, 37

Land and Environment Court Act 1979, s 34

Pittwater Local Environmental Plan 2014, cll 4.3, 4.5A, 4.6, 5.21, 6.1, 7.2

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

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

State Environmental Planning Policy (Resilience and Hazards) 2012, s 4.6

State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022

State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development, cll 28, 29, 30

Texts Cited:

Northern Beaches Local Housing Strategy

Northern Beaches Local Strategic Planning Statement

NSW Department of Planning and Environment, Apartment Design Guide

Pittwater 21 Development Control Plan

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Pearman (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Yates Law Pty Limited (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/384679

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Northern Beaches Planning Panel on behalf of the Northern Beaches Council (the Respondent) of development application no. DA2022/0919 seeking consent for demolition works and construction of shop top housing over one level of commercial and basement car parking at 3 Gondola Road, North Narrabeen.

2. On 1 June 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached agreement on the matters in contention, subject to amended plans and other documents being prepared, for which I granted an adjournment on two occasions.

4. A signed agreement was filed with the Court on 28 July 2023, in accordance with s 34(10) of the LEC Act.

5. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 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 s 34 agreement.

6. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. The development application was lodged on 6 July 2022 with the written consent of the owners of the land, and was notified in accordance with the Respondent’s notification policy from 22 July 2022 to 19 August 2022.

9. The site is located within an area formerly identified as B2 Local Centre. However, upon the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 on 26 April 2023, and State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022, the B2 zone was re-characterised in the Pittwater Local Environmental Plan 2014 (PLEP) as E1 Local Centre with additional zone objectives.

10. Development for the purposes of shop top housing and commercial premises are permitted in the E1 Local Centre where consistent with the following objectives for development in the zone:

•  To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse, and functional streets and public spaces.

•  To create urban form that relates favourably in scale and in architectural and landscape treatment to neighbouring land uses and to the natural environment.

The height of building standard is exceeded

11. The height of building standard at cl 4.3(2) of the PLEP is 8.5m. However, the site is also identified as being affected by High Hazard flooding on Council’s Flood Risk Precinct Map at Section B3.11 of the Pittwater 21 Development Control Plan (PDCP), resulting in a Flood Planning Level (FPL) of 4.4m Australian Height Datum (AHD). Subclause 4.3(2A)(b) of the PLEP permits development on land to which such a height standard applies to exceed the standard of 8.5m, by not more than 8m above the FPL. As such, a total building height of 12.4m AHD is permitted on the site.

12. The Applicant relies on a written request prepared by BBF Town Planners in accordance with cl 4.6 of the PLEP in respect of the height exceedance (height request), stating that the proposed development has a height of 16.8m AHD measured to the roof form, and 18.4m AHD measured to lift overrun.

13. The height request asserts that compliance with the height standard is unreasonable or unnecessary as the objectives of the height standard are achieved, notwithstanding the non-compliance, and because the Respondent has virtually abandoned the standard by the grant of consent to non-conforming development in close proximity to the site.

14. The objectives of the height standard at cl 4.3 of the PLEP are:

(a)  to ensure that any building, by virtue of its height and scale, is consistent with the desired character of the locality,

(b)  to ensure that buildings are compatible with the height and scale of surrounding and nearby development,

(c)  to minimise any overshadowing of neighbouring properties,

(d)  to allow for the reasonable sharing of views,

(e)  to encourage buildings that are designed to respond sensitively to the natural topography,

(f)  to minimise the adverse visual impact of development on the natural environment, heritage conservation areas and heritage items.

15. The height request asserts that:

1. Objective (a) is achieved when the desired future character of the locality is understood in context with recent approvals for three-storey shop top housing development in the local, including the adjoining development at No 1 Gondola Road, that are consistent with the desire for the North Narrabeen commercial centre to reflect the status of the centre as a ‘gateway’.

2. Relatedly, objective (b) is also said to be achieved, in part, due to compatibility of the four-storey presentation of the proposal with five sites that present three-storey development in the North Narrabeen area.

3. In respect of objective (c), no unreasonable overshadowing impacts arise. Where additional overshadowing is shown in shadow diagrams, those units at No 2-8 Rickard Road retain in excess of 2 hours of direct sunlight between 9am – 3pm.

4. There are no view corridors impacted by the proposal beyond the impact anticipated by the development for which consent has been granted at No 1 Gondola Road, and so the height request asserts objective (d) is not relevant, or, in the alternative, is achieved.

5. Evidence of the sensitive response to natural topography, sought by objective (e), lies in the successful balance of development on a site in a flood plan with street activation, retail presentation, and high quality residential development above.

6. The visual impact of the development is minimised by the setback of the uppermost level, so that the proposal is perceived from the public domain as three-storey development, achieving the objective at (f).

16. Next, the height request advances environmental planning grounds. It believes to be sufficient to justify the contravention of the height standard, summarised as follows:

1. Flood waters affecting the site are likely to rise quickly, precluding escape and necessitating shelter to be located at or above the FPL in accordance with Section B3.11 of the PDCP. So as to moderate the level difference between street level and a safe ground floor retail presentation, safe shelter is provided at the roof level, exceeding the height standard, that is so designed for ‘shelter in place’.

2. The three-storey presentation to the street ensures consistency with built form in the North Narrabeen Local Centre. Where the exceedance occurs, at the roof terrace, it is at an almost identical height as that approved on the adjoining site at No 1 Gondola Road.

3. That portion of the development that exceeds the height standard provides communal open space consistent with Objective 3D-1 of the Apartment Design Guide, and the objects of the EPA Act, that is otherwise not accommodated on the ground floor due to certain site constraints.

17. Finally, the height request asserts consistency with the objectives of the zone, at [10], because the proposed height variation facilitates the provision of retail uses on the ground floor while enabling residential development associated with a mixed use development that will contribute to the viability of the commercial centre, and because the height variation results in an urban form that relates favourably to neighbouring land uses.

18. I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the PLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the E1 zone.

19. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the PLEP.

20. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

21. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the E1 zone, for the reasons given in the height request.

22. In forming this opinion of satisfaction, I accept that the proposed development is development that is permitted with consent notwithstanding the flood affectation on the site and that the external form of the development is of a scale that is compatible with adjoining development for which consent has been granted.

23. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the PLEP and I find no grounds on which the Court should not uphold the height request.

The dwelling density standard is exceeded

24. The proposed development is for shop top housing comprising seven dwellings on land with a total site area of 638.7m².

25. Clause 4.5A of the PLEP provides density controls for certain residential accommodation that includes, at subcl (4), that a maximum of 1 dwelling per 150m² of site area is permitted in the E1 Local Centre.

26. As the proposed density is 1 dwelling per 91.24m², the dwelling density standard at cl 4.5A is exceeded, and the Applicant relies on a written request prepared by BBF Town Planners in accordance with cl 4.6 of the PLEP (Density Request).

27. The Density Request explains that at the time the development was lodged in July 2022, the density control applied to shop top housing in the B1 Neighbourhood zone, and not to the B2 Local Centre zone as was applicable at the time of lodgement. However, as a result of the amendment at [9], the density control become effective as at 26 April 2023.

28. I accept, and I am satisfied, that compliance with the density control is unreasonable or unnecessary in the circumstances of this case because the proposal is consistent with the objectives of the control notwithstanding the non-compliance for the reasons set out in the Density Request, summarised as follows:

1. Firstly, at the time of lodgement, the Northern Beaches Local Strategic Planning Statement, and the Northern Beaches Local Housing Strategy did not anticipate constraints on residential density in the B2 Local Centre beyond those envisaged by built form and envelope controls in the PLEP. As such, the residential density proposed is consistent with the residential density planned at the time the development application was lodged.

2. Secondly, the residential density proposed on the site is consistent with the desired future character expressed in Section A4.11 of the PDCP as it delivers medium density housing within and around commercial centres and in immediate proximity to public transport and community facilities.

29. I am also satisfied that the reasons set out in the Density Request are sufficient environmental planning grounds to justify the contravention of the density control. In particular, I accept that the proposed residential density is within a building envelope that is contextually appropriate when existing development, and development for which consent has been granted is considered.

30. Finally, the height request asserts consistency with the objectives of the zone, at [10] that are virtually identical to those at [16] and because the proposed dwelling density enables development of a density that will contribute to a vibrant and active local centre, consistent with the strategic planning objectives identified at [28(1)].

31. I note here that the Respondent is satisfied that the Density Request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the PLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the density control and the objectives for development in the E1 zone.

32. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the PLEP.

33. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the density control under cl 4.5A of the PLEP is justified.

34. I am satisfied under cl 4.6(4) that the Density Request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the density control and the objectives for development within the E1 zone, for the reasons given in the Density Request.

35. In forming this opinion of satisfaction, I note the density control did not apply to the development on the site at the time the development application was lodged, nor when the appeal was filed with the Court on 21 December 2022.

36. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the PLEP and I find no grounds on which the Court should not uphold the Density Request.

Other jurisdictional pre conditions

37. As stated at [11], the site is flood affected and the provisions at cl 5.21 of the PLEP apply to the site. I have carefully considered those matters at cl 5.21(3) of the PLEP and note the following:

1. The development application, as amended, is accompanied by a Flood Risk and Flood Emergency Response Plan prepared by Martens & Associates dated May 2023 that satisfies me that the proposed development:

1. is compatible with the flood function and behaviour on the land;

2. provides sufficient flood storage so that there is no change to flood conveyance or flood impacts to surrounding sites; and

3. is accompanied by a Flood Emergency Response Plan that will not adversely affect the safe occupation or efficient evacuation of people in the event of flood, and incorporates appropriate measures to manage risk to life in the event of flood;

2. On the basis of the Concept Stormwater Management Plan prepared by Martens & Associates, I am also satisfied that erosion, siltation and the like are adequately addressed so as not to adversely affect the environment.

38. An Acid Sulfate Soils Management Plan (ASSMP) has been prepared by Martens & Associates dated July 2023 in accordance with cl 7.1 of the PLEP. The ASSMP identifies the site to be located within an area classified as Class 3 Acid Sulfate Soils. Field Screening and Soil Assessment did not detect Acid Sulfate Soils on the site.

39. On the basis of the Geotechnical, Hydrogeological and Acid Sulfate Soil Assessment report prepared by Martens & Associates dated May 2022, and the Concept Stormwater Management Plan prepared by Martens & Associates, I have considered those matters at cl 7.2(3) of the PLEP and conclude the earthworks associated with the development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

40. Section 29 of Environmental Planning and Assessment Regulation 2021 (EPA Regulation) provides:

(1) A development application that relates to residential apartment development must be accompanied by a statement by a qualified designer.

(2) The statement must—

(a) verify that the qualified designer designed, or directed the design of, the development, and

(b) explain how the development addresses—

(i) the design quality principles, and

(ii) the objectives in Parts 3 and 4 of the Apartment Design Guide.

…

41. A design statement, authored by Mr Dugald Mackenzie (Arch Reg No 6033) and dated 13 May 2022 has been prepared in support of the proposal. The design statement is in a complying form; explaining those matters at s 29(2)(b) of the EPA Regulation.

42. The design statement also assists the Court to consider those matters to be considered in determining a development application at cl 28 of State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development (SEPP 65), and to demonstrate that adequate regard has been had to those matters at cl 30(2) of SEPP 65.

State Environmental Planning Policy (Resilience and Hazards) 2021

43. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 precludes development consent to any development unless it has been considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable, or will be suitable after undergoing remediation, for the proposed use.

44. A Preliminary Site Investigation dated July 2023 prepared by Martens and Associates Pty Ltd recommends that following demolition, a soil and groundwater sampling program is completed to confirm that no contamination is present; and that the site will be suitable for the proposed mixed use development subject to completion of a detailed site investigation and after remediation and validation if required.

45. Due to the site being otherwise fully occupied by structures at present, the agreed conditions of consent require the preparation of a detailed site investigation, remedial action plan and site audit prior to the issue of the construction certificate to enable demolition to occur on the site and any required site remediation to be undertaken prior to construction.

46. On the basis of those recommendations at [44], and the agreed conditions of consent, I accept the site will be made suitable for the proposed development.

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

47. The application is accompanied by a BASIX certificate (Cert No. 1292718M_02), prepared by Ecoplus Consultants Pty Ltd dated 27 July 2023 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

48. 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.

49. 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.

50. The Court notes that:

1. The Northern Beaches Council, as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA2022/0919 in accordance with the documents listed in paragraph [51](1)(a) below;

2. The Applicant filed the Amended Development Application with the Court on 28 July 2023.

Orders

51. The Court orders that:

1. Leave is granted to the Applicant to rely on the following plans and documents:

1. Architectural plans:

Plan No.	Plan Title	Drawn by	Dated
A0000 (Revision G)	Cover Page	Mackenzie Architects International	04/07/2023
A0001 (Revision A)	Local Context	Mackenzie Architects International	18/05/2022
A0002 (Revision E)	Site Analysis	Mackenzie Architects International	22/06/2023
A0003 (Revision A)	Demolition Plan	Mackenzie Architects International	18/05/2022
A0004 (Revision B)	Excavation Plan	Mackenzie Architects International	13/06/2023
A1000 (Revision F)	Site Plan	Mackenzie Architects International	03/07/2023
A1001 (Revision E)	Basement 1	Mackenzie Architects International	22/06/2023
A1002 (Revision F)	Lower Ground Floor	Mackenzie Architects International	03/07/2023
A1003 (Revision E)	Upper Ground Floor Plan	Mackenzie Architects International	22/06/2023
A1004 (Revision E)	First Floor Plan	Mackenzie Architects International	22/06/2023
A1005 (Revision G)	Second Floor Plan	Mackenzie Architects International	04/07/2023
A1006 (Revision F)	Roof Terrace/COS Plan	Mackenzie Architects International	03/07/2023
A1007 (Revision F)	Roof Plan	Mackenzie Architects International	03/07/2023
A2000 (Revision F)	Street + East Elevations	Mackenzie Architects International	03/07/2023
A2001 (Revision G)	South + West Elevations	Mackenzie Architects International	04/07/2023
A2002 (Revision G)	North + South Elevations	Mackenzie Architects International	04/07/2023
A2100 (Revision F)	Section A	Mackenzie Architects International	03/07/2023
A2101 (Revision G)	Section B	Mackenzie Architects International	04/07/2023
A2102 (Revision F)	Section C	Mackenzie Architects International	03/07/2023
A3000 (Revision F)	GFA Calculations	Mackenzie Architects International	04/07/2023
A3001 (Revision E)	Deep Soil	Mackenzie Architects International	22/06/2023
A3002 (Revision E)	Landscape	Mackenzie Architects International	22/06/2023
A3003 (Revision F)	COS Compliance	Mackenzie Architects International	03/07/2023
A3004 (Revision F)	Building Height Plane	Mackenzie Architects International	22/06/2023
A3005 (Revision F)	Natural Ventilation	Mackenzie Architects International	04/07/2023
A3006 (Revision G)	Finishes Schedule	Mackenzie Architects International	04/07/2023
A3007 (Revision D)	Pre-Adaptable (Silver)	Mackenzie Architects International	22/06/2023
A3008 (Revision D)	Post-Adaptable Layout	Mackenzie Architects International	22/06/2023
A3009 (Revision E)	Travel Distance	Mackenzie Architects International	22/06/2023
A3010 (Revision D)	Neighbour Planning Site	Mackenzie Architects International	22/06/2023
A3011 (Revision C)	Neighbour Planning Plan	Mackenzie Architects International	22/06/2023
A4000 (Revision F)	Jun 21 Solar Access	Mackenzie Architects International	03/07/2023
A4001 (Revision F)	Jun 21 Solar Access	Mackenzie Architects International	03/07/2023
A4002 (Revision F)	Jun 21 Solar Access	Mackenzie Architects International	03/07/2023
A4003 (Revision F)	Jun 21 Solar Access	Mackenzie Architects International	03/07/2023
A4100 (Revision F)	Jun 21 Shadow Diagram 9am	Mackenzie Architects International	03/07/2023
A4101 (Revision F)	Jun 21 Shadow Diagram 12pm	Mackenzie Architects International	03/07/2023
A4102 (Revision F)	Jun 21 Shadow Diagram 3pm	Mackenzie Architects International	03/07/2023

2. Landscape Plans:

Plan No.	Plan Title	Drawn by	Dated
22/2395 1 of 2 (Issue F)	Landscape site plan – Ground floor level & Roof level	Paul Scrivener Landscape	04/07/2023
22/2395 2 of 2 (Issue F)	Planting Plan, Details and schedule	Paul Scrivener Landscape	04/07/2023

3. Stormwater Management Plans:

Plan No.	Plan Title	Drawn by	Dated
PS01-A000 (Revision D)	Cover Sheet	Martens & Associates Pty Ltd	16/05/2023
PS01-B300 (Revision B)	Ground Floor Sediment and Erosion Control Plan	Martens & Associates Pty Ltd	16/05/2023
PS01-B310 (Revision A)	Sediment and Erosion Control Details	Martens & Associates Pty Ltd	06/05/2022
PS01-E100 (Revision C)	Basement Drainage Plan	Martens & Associates Pty Ltd	16/05/2023
PS01-E101 (Revision D)	Lower Ground Floor Drainage Plan	Martens & Associates Pty Ltd	16/05/2023

4. 3D Views – 3 Sheets;

5. Flood Risk Assessment and Flood Emergency Response Plan prepared by Martens & Associates Pty Ltd dated May 2023;

6. Acid Sulfate Soil Management Plan prepared by Martens & Associates Pty Ltd dated July 2023;

7. Preliminary Site Investigation prepared by Martens & Associates Pty Ltd dated July 2023;

8. Basix certificate number 1292718M_02 prepared by Ecoplus Consultants Pty Ltd dated 27 July 2023;

2. The request pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 to vary the development standard for height of buildings contained in clause 4.6 prepared by BBF Town Planners dated 4 July 2023 is upheld.

3. The request pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 to vary the development standard for dwelling density contained in clause 4.5A prepared by BBF Town Planners dated 25 July 2023 is upheld.

4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of the Court allowing the Applicant to file the Amended Development Application, in the amount of $5,500.

5. The appeal is upheld.

6. Development Application DA2022/0919 for the demolition of the existing building with its associated structure and hard stand paving, construction of a shop top housing development comprising seven residential apartments and a ground floor commercial tenancy over two levels of car parking for 22 vehicles on land at 3 Gondola Road, North Narrabeen is approved, subject to the conditions contained in the annexure marked "A".

……………………

T Horton

Commissioner of the Court

Annexure A (400116, pdf)

**********

Decision last updated: 14 August 2023