Macri v Northern Beaches Council

Case •

[2021] NSWLEC 1685

•

10 November 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Macri v Northern Beaches Council [2021] NSWLEC 1685
Hearing dates: Conciliation conference on 31 August, 22 and 28 September, 15 and 29 October and 3 November 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay, on or before 1 December 2021, those costs of the Respondent thrown away as a result of the Court allowing the Applicant to file the Amended Development Application agreed at $15,000.

(2) The updated written request made pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 seeking to vary the height of buildings development standard in clause 4.3 of PLEP prepared by JV Urban dated 26 October 2021 is upheld.

(3) The updated written request made pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 seeking to vary the dwelling density development standard in clause 4.5A(2) of PLEP prepared by JV Urban dated 6 September 2021 is upheld.

(4) The Appeal is upheld.

(5) Development Application DA2020/1351 for demolition of existing buildings and construction of a three storey shop top housing development at 1 Bilambee Lane, Bilgola Plateau is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – shop top housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.14, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 39

Pittwater Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.5A, 4.6, 7.1, 7.2, 7.6, 7.10

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

State Environmental Planning Policy (Infrastructure) 2007, cl 45

State Environmental Planning Policy 55— Remediation of Land, cl 7

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

Texts Cited:

Pittwater Development Control Plan 2014

Category:Principal judgment
Parties: Steve Macri (Applicant)
Northern Beaches Council (Respondent)
Representation:

Counsel:
M Staunton (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2021/65557
Publication restriction: No

Judgment

  1. COMMISSIONER: 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 actual refusal of a development application DA2020/1351 seeking development consent for the demolition of existing buildings and construction of a three (3) storey shop top housing development (the Proposed Development) at 1 Bilambee Lane, Bilgola Plateau NSW, legally identified as Lot 5 DP 229309 (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 31 August, 22 and 28 September, 15 and 29 October and 3 November 2021. I 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 those identified in the Statement of Facts and Contentions filed 7 May 2021 (SOFAC) being the relevant provisions of the following instruments which include various jurisdictional prerequisites: Pittwater Local Environmental Plan 2014 (PLEP), State Environmental Planning Policy 55—Remediation of Land (SEPP 55), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Infrastructure) 2007 and State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). In particular, relevant to the Proposed Development are the provisions of cl 4.6 of the PLEP to justify the contravention of two development standards as detailed below.

  6. The parties explained how the jurisdictional prerequisites have been satisfied and they provided the court with a joint written agreed jurisdictional statement. I summarise the explanation of the parties below.

Jurisdictional prerequisites

  1. The owner of the Land is The Boss NSW Pty Ltd (Owner). The DA was made by Steve Macri with the consent of the Owner as evidenced by the Development Application form filed with the Class 1 Application on 8 March 2021.

  2. In relation to notification of the Proposed Development, I note that the Development Application was lodged with the Respondent Council on 27 October 2020 and as set out in the SOFAC under the heading ‘Actions of the Respondent’ on page 9, the parties summarised and updated as follows:

  1. The DA in its original form was advertised and notified to adjoining and nearby landowners in accordance with Northern Beaches Council’s Community Participation Plan from 6 November 2020 for 21 days. Council received 52 submissions. The submissions raised matters to do with height, insufficient parking, impacts on views, excessive excavation, insufficient landscaping, impacts on amenity of adjoining residential units at 3 & 4, 1 Bilambee Avenue, overlooking of 1 Bilkurra Avenue and construction impacts of the proposed development, proposed materials and colours.

  2. The objectors’ concerns were considered by the Council, and where appropriate have been incorporated into the SOFAC. These concerns have also been considered by the parties in the resolution of the proceedings.

  3. The Council notified the first amendments received after the first part of the s 34 conference between 8 September 2021 and 20 September 2021 to all 52 submitters referred to above. Three submissions were received, two of which addressed the Court at the first part of the s 34 conference. Further changes were made to the plans to give rise to the Final Amendment. The council then notified the Final Amendment to the 3 submitters between 21 October 2021 and 25 October 2021 and 3 submissions were received. All the submissions received have been considered by the parties.

  1. The PLEP applies to the Proposed Development and numerous clauses are relevant to the Proposed Development.

  2. In relation to whether the Proposed Development is permissible development, demolition is permissible with consent pursuant to cl 2.7 of PLEP and development for the purpose of Shop Top Housing is permissible in the B1 zone and Site is zoned B1 Neighbourhood Centre under the PLEP.

  3. Clause 2.3 of the PLEP requires the consent authority to have regard to the objectives of the B1 zone. Those objectives are as follows:

● To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

● To provide healthy, attractive, vibrant and safe neighbourhood centres.

  1. In response to those objectives, the Proposed Development provides for small scale retail tenancies at ground floor that will serve the needs of people who live and work in the surrounding area, and the shop top housing in combination with the retail will make a positive contribution to the neighbourhood centre as it remediates the existing site (health), provides an active interface with the public domain and a quality architectural building design (attractive), provides residential accommodation and retail business with public domain improvements which will bring new residents to the centre and attract customers (vibrant) and it will provide street surveillance in the day and night (Safe).

  2. The Land is shown on the Acid Sulphate Soils Map as Class 5 pursuant to cl 7.1 of the PLEP. The Applicant’s geotechnical report by Canopy Enterprises provides that the Site is at approximately RL 146 AHD and is not within 500m of another Acid Sulphate Soil class, and therefore an Acid Sulphate Soil assessment is not needed.

  3. The earthworks of the Proposed Development must comply with cl 7.2 of the PLEP and the proposed earthworks are assessed in both geotechnical reports prepared for the applicant, being Canopy Enterprises dated July 2020 and STS Geotechnics dated June 2020 and found to be suitable for the intended development on the land.

  4. Clause 7.6 regarding Biodiversity applies to the Site. The site is occupied by a disused service station and mechanical repair station. It is generally covered by buildings and hardstand with some turf areas and small trees within the site with turf and street trees adjoining the site. An arborist report was submitted with the Class 1 Application prepared by Advanced Treescape Consulting dated 9 June 2020. The report found that all trees were of low significance and would benefit from removal and replacement. The proposed development will provide landscaping and public domain improvements including new street trees which will result in an improved ecological outcome on the site. The Court can be satisfied of the matters prescribed in cl 7.6 of the PLEP.

  5. The Proposed Development is required to comply with the matters set out in cl 7.10 of the PLEP regarding essential services. The existing site is connected to water, sewer and electricity. The Proposed Development will connect to those existing services and provides for stormwater to be treated and drained into Council’s system. The proposed development provides suitable vehicular access from the rear land to the basement.

  6. There are a number of development standards prescribed in the PLEP which are relevant to the Proposed Development. In relation to floor space ratio, the PLEP does not prescribe a floor space ratio for the Site. The PLEP does prescribe a height of building standard in cl 4.3 and a dwelling density standard in cl 4.5A which are contravened by the Proposed Development and in relation to each, the Applicant relies on a cl 4.6 written request. I will now address each development standard and the relevant cl 4.6 written request to justify the contravention by the Proposed Development.

Justification of the contravention of the height of building development standard supported by a cl 4.6 written request

  1. Clause 4.3(2) of PLEP prescribes a height of buildings standard of 8.5m for the Site. The Proposed Development contravenes the height of building development standard by having a maximum building height to the general roof level of   RL151.55m AHD or 9.9m above existing ground level, and  RL153m AHD to the top of the lift overrun being 11.35m noting that the lift overrun occupies approximately only 1% of the roof site area. Clause 4.6 of PLEP allows the Court, as the consent authority in these proceedings, to grant consent to the Proposed Development notwithstanding the contravention of cl 4.3(2), subject to it being satisfied that the relevant preconditions in cl 4.6 have been met.

  2. The Applicant relies on an updated written request seeking to justify the contravention of the building height development standard in cl 4.3(2), prepared by JVUrban, dated 26 October 2021 (cl 4.6 Height Written Request).

  3. The parties agree that for the purposes of cl 4.6(4), the Court would be satisfied that:

  1. the cl 4.6 Height Written Request has adequately addressed the matters required to be demonstrated by subcl (3), and

  2. the Proposed Development will be in the public interest because it is consistent with the objectives of the building height development standard and with the objectives for development within the B1 Neighbourhood Centre zone in which the development is proposed to be carried out.

  1. The Court can grant consent without the concurrence of the planning secretary pursuant to s 8.14(3) of the EPA Act, but should take into account the matters in cl 4.6(5). In this case the Proposed Development is a local development with a minor non-compliance and an adequately justified breach of the building height development standard. In the circumstances of this case, the contravention of cl 4.3(2) of PLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard.

  2. The respondent agrees that the cl 4.6 Height Written Request is well founded and is supportable.

  3. I have read and considered the cl 4.6 Height Written Request and have formed the state of satisfaction required, and I conclude that the Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the PLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the PLEP, and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Justification of the contravention of the dwelling density development standard supported by a cl 4.6 written request

  1. Clause 4.5A(2) of PLEP prescribes a dwelling density development standard of 1 dwelling per 150m2 of the site area. The Proposed Development contravenes the dwelling density standard with a dwelling density of 1 dwelling per 132.86m2. Clause 4.6 of PLEP allows the Court, as the consent authority in these proceedings, to grant consent to the Proposed Development notwithstanding the contravention of cl 4.5A(2), subject to it being satisfied that the relevant preconditions in cl 4.6 have been met.

  2. The Applicant relies on an updated written request seeking to justify the contravention of the dwelling density development standard in cl 4.5A(2) prepared by JVUrban, dated 6 September 2021 (cl 4.6 Dwelling Density Written Request).

  3. For the purposes of cl 4.6(4), the parties submit that the Court would be satisfied that:

  1. the cl 4.6 Dwelling Density Written Request has adequately addressed the matters required to be demonstrated by subcl (3), and

  2. the Proposed Development will be in the public interest because it is consistent with the objectives of the dwelling density development standard and the objectives for development within the B1 Neighbourhood Centre zone in which the development is proposed to be carried out.

  1. The Court can grant consent without the concurrence of the planning secretary pursuant to s 8.14(3) of the EPA Act, but should take into account the matters in cl 4.6(5). In this case the Proposed Development is a local development with a minor non-compliance and an adequately justified breach of the dwelling density development standard. In the circumstances of this case, the contravention of cl 4.5A(2) of PLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard.

  2. The respondent agrees that the cl 4.6 Dwelling Density Written Request is well founded and is supportable.

  3. I have read and considered the cl 4.6 Dwelling Density Written Request and have formed the state of satisfaction required, and I conclude that the Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.5A of the PLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the PLEP, and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone, in which the development is proposed to be carried out.

Other jurisdictional matters pursuant to state environmental planning policies

  1. The parties addressed the relevant state environmental planning policies and these are summarised below.

  2. As required by cl 7 of the SEPP 55, a Preliminary Site Investigation Report with Supplementary Sampling prepared by Canopy Enterprises dated July 2020 (Canopy Report) forms part of the Class 1 Application. The Site was previously used as a service station and for car repairs. The Canopy Report confirms that a previous investigation was undertaken in 1996 that confirmed all underground storage tanks had been removed and that there was no contamination identified on the site. The Canopy Report makes recommendations in section 8 that includes a requirement for an unexpected finds protocol, and concludes that subject to implementation of the recommendations in the report, the site is suitable for the land use proposed. A condition of consent has been included that requires a detailed investigation of areas under hardstand with any contamination to be remediated and the site to be the subject of a site audit. The Court can be satisfied that the requirements of cl 7 of SEPP 55 are met.

  3. An amended BASIX certificate No 1136015M_04 dated 21 October 2021 has been prepared in relation to the Final Amendment which confirms that the development will meet sustainability requirements if it is built in accordance with the commitments as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

  4. The development application was notified to Ausgrid pursuant to cl 45 of the State Environmental Planning Policy (Infrastructure) 2007. Ausgrid responded and their letter, undated but uploaded to Council’s DA Tracker site confirms that they have no objection to the development application provided compliance with clearances to Ausgrid infrastructure is maintained onsite.

  5. SEPP 65 applies to the erection of a residential flat building. A design verification statement (DVS) has been prepared by David Benson, registered architect, dated 28 October 2021. The DVS addresses the latest plans and provides the certification required under SEPP 65.

  6. The Parties have had regard to the relevant provisions of Pittwater Development Control Plan 2014 (PDCP). In particular, the Parties have had regard to the clauses noted in the SOFAC and the particularised contentions. The Court would be satisfied that the Development can be approved having regard to the provisions of the PDCP and s 4.15(1)(a)(iii) of the EPA Act.

  7. The parties agree that the Proposed Development can be approved taking into consideration the matters in s 4.15(1)(b) – (e) of the EPA Act. The parties agree that the submissions of objectors are a relevant consideration under s 4.15(1)(d) of the EPA Act. The parties agree that the submissions of objectors have been taken into account and consent to the Proposed Development can be granted.

  8. In considering the Proposed Development and, in deciding whether to enter into a s 34 Agreement which will give rise to the grant of a development consent, the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act.

  9. Under s 8.15(4) of the EPA Act, the Respondent is to notify the Panel of the appeal and is subject to the control and direction of the panel in connection with the conduct of the appeal. The Respondent confirms that the provisions of s 8.15(4) have been complied with and that it is authorised to enter into a s 34 agreement.

  10. 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. I refer to and adopt the reasons given by the parties as I have summarised above in this judgment.

  1. 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.

  2. The Court notes:

  1. that the Applicant has amended Development Application 2020/1351 with the agreement of Northern Beaches Council (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and documents:

  1. Architectural plans DA 0100 Rev G to DA 0302 Rev G by Benson McCormack Architects.

  2. Landscape plans LS01 issue E and LS03 issue E by Melissa Wilson Landscape architects.

  3. Updated written request made pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 seeking to vary the height of buildings development standard in clause 4.3 of PLEP prepared by JV Urban dated 26 October 2021.

  4. Updated written request made pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 seeking to vary the dwelling density development standard in clause 4.5A(2) of PLEP prepared by JV Urban dated 6 September 2021.

  5. Design Verification Statement by Benson McCormack architects dated 29 October 21

  6. BASIX certificate 1136015M_4 dated 21 October 2021.

(Amended Development Application).

  1. that the Amended Development Application has been lodged on the NSW planning portal on 2 November 2021.

  2. that the Applicant has subsequently filed the Amended Development Application with the Court on 3 November 2021.

  1. The Court orders that:

  1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 the Applicant is to pay, on or before 1 December 2021, those costs of the Respondent thrown away as a result of the Court allowing the Applicant to file the Amended Development Application agreed at $15,000.

  2. The updated written request made pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 seeking to vary the height of buildings development standard in clause 4.3 of PLEP prepared by JV Urban dated 26 October 2021 is upheld.

  3. The updated written request made pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 seeking to vary the dwelling density development standard in clause 4.5A(2) of PLEP prepared by JV Urban dated 6 September 2021 is upheld.

  4. The Appeal is upheld.

  5. Development Application DA2020/1351 for demolition of existing buildings and construction of a three storey shop top housing development at 1 Bilambee Lane, Bilgola Plateau is approved subject to the conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (4122242, pdf)

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Decision last updated: 10 November 2021

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Steve Macri v Northern Beaches Council [2024] NSWLEC 1195
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