Manly Vale Developments No 2 Pty Limited v Northern Beaches Council

[2022] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:

Manly Vale Developments No 2 Pty Limited v Northern Beaches Council [2022] NSWLEC 1060

Hearing dates:

Conciliation conference held on 22 December 2021 and 27 January 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

(1) The updated written request made pursuant to clause 4.6 of Warringah Local Environmental Plan 2011 (WLEP), seeking to vary the height of buildings development standard in clause 4.3 of WLEP, prepared by Boston Blyth Fleming dated 24 January 2022, is upheld.

(2) The Appeal is upheld.

(3) 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 $3,500.

(4) Development Application DA2020/0824 for demolition of existing buildings and construction of a four storey shop top housing development at 321-331 Condamine Street, Manly Vale is approved subject to the conditions in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – shop-top housing – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15, 4.16, 7.4, 8.7

Environmental Planning and Assessment Regulation 2000, cl 50

Land and Environment Court Act 1979, s 34

Roads Act 1993, ss 138, 37

State Environmental Planning Policy Infrastructure 2007, cll 45, 101, 102

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

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

Warringah Local Environmental Plan 2011, cl 4.3, 4.6, 6.2, 6.4, 7.2

Category:

Principal judgment

Parties:

Manly Vale Developments No 2 Pty Limited (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Simpson, Solicitor (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2021/286483

Judgment

1. COMMISSIONER: Development Application No. DA2020/0824 was lodged with Northern Beaches Council on 24 July 2020 seeking consent for the construction of a shop top housing development at 321-331 Condamine Street, Manly Vale (site).

2. The Council initially refused consent on 16 December 2021 and also refused an application for review on 6 October 2021. The applicant is appealing that determination pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

The proposal

3. The applicant has amended the application since the Council’s determination, and the proposal as amended remains a shop-top housing development with the amendments made to address the Council’s contentions in the case.

4. The proposal is for a four-storey building over two-level basement carpark. The ground floor would comprise four retail tenancies, storage areas, plant rooms and loading bay. Three levels of apartments would be constructed above around a centralised internal courtyard.

5. The application includes a letter of offer dated 22 December 2021. That offer is for the applicant to enter into a voluntary planning agreement (VPA) with Northern Beaches Council in connection with the application. The provision to be made under the VPA will be the dedication to Council of 1.4m wide x 38.075m long strip of land adjacent to Somerville Place to be used to widen Somerville Place.

6. The purpose of the dedication is to widen the laneway.

7. The amended application was lodged on the NSW Planning Portal on 1 February 2022.

The site and locality

8. The site comprises 5 allotments which are located on the north western corner of Condamine and Sunshine Street. The site, known as 321-331 Condamine Street, Manly Vale, also has frontage to Somerville Place to the west, and a single lane one-way laneway that connects Sunshine and King Streets.

9. The site experiences a cross fall from the upper north-western corner down towards the south-eastern corner of approximately 1.87m, with a maximum gradient of 5.5%.

10. The site currently contains one and two storey mixed use buildings with vehicular access gained via Somerville Place.

11. Properties to the north and south of the site fronting Condamine Street are used for a range of retail and commercial purposes and range from single storey to four storey buildings.

12. Sites to the west of Sommerville Place are residential and comprise a mix of one and two storey detached dwelling houses.

Planning controls

13. The site is zoned B2 Local Centre under Warringah Local Environmental Plan 2011 (WLEP). The proposed use is permitted with consent in that zone.

14. Pursuant to the provisions of WLEP cl 4.3 Height of buildings, a maximum building height of 11m applies to the site. The proposal exceeds that height and the applicant relies on a written request to vary that development standard made pursuant to the provisions of cl 4.6 of the WLEP.

15. As excavation of the site is required, the provisions of WLEP cl 6.2 Earthworks apply. Before granting development consent for earthworks, the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the proposed development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

The contentions

16. The contentions in the case are detailed in the Council’s Statement of Facts and Contentions filed on 17 November 2021. The contentions are:

1. The proposed development should be refused due to its excessive height and the impacts of this on the character of the locality, adjoining properties and the surrounding environment.

2. The proposed development should be refused due to its excessive height, bulk and scale which will result in unreasonable impacts upon the character of the locality, adjoining properties, and the surrounding environment.

3. The proposed development should be refused as it does not provide an acceptable level of amenity for future occupants of the proposed development and will have unacceptable amenity impacts on adjoining properties.

4. The proposed development should be refused as it has not been demonstrated that access to, from and within the site is appropriate or safe.

5. The proposed development should be refused as it is not in the public interest and will establish an undesirable precedent in the immediate locality.

17. The Council is now satisfied that the contentions have been resolved through the amendments made to the application and the widening of Somerville Place.

18. A further contention related to lack of information however, this has now been addressed by the applicant through the amended application and supporting documents.

19. An agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) has been reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EP&A Act.

20. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The proposed use is permissible with consent pursuant to the provisions of the WLEP.

2. The amended application addresses the relevant provisions of the WLEP and the Council’s Development Control Plan.

21. As the height of the proposal exceeds the 11m development standard, consideration of the written request and the terms of cl 4.6 of the WLEP is required.

22. I have reviewed the request and in accordance with cl 4.6 of the WLEP, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of the WLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the WLEP). In particular, the Court notes the recent form of development approved by the Council along Condamine Street and the public benefit of dedication of the road widening that results in loss of site area to accommodate the floor space that could have been constructed, should that land be incorporated in the development site.

23. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of the WLEP are met.

24. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the B2 Local Centre zone and cl 4.3 Height of Buildings. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the WLEP are met.

25. Pursuant to cl 4.6(5) of the WLEP, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

26. The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the control.

27. The terms of cl 6.4 Development on sloping land have been considered and addressed in documentation submitted with the amended application. Conditions 55 and 69 will ensure compliance with the requirements of this clause.

28. The terms of cl 7.2 Earthworks of the WLEP have been considered and addressed in the amended application and through appropriate consent conditions.

29. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land requires consideration of whether a site is contaminated. Having regard to the Preliminary Site Investigation report submitted with the application, I am satisfied that the site is suitable for the proposed development and that appropriate conditions have been incorporated to address any unexpected finds.

30. A BASIX Certificate dated 27 January 2022 has been prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

31. Clause 45(1)(b) State Environmental Planning Policy Infrastructure 2007 (SEPP Infrastructure) requires the consent authority to give written notice to the electricity supply for the area in which the development is to be carried out before determining a development application which is:

(i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii) immediately adjacent to an electricity substation, or

(iii) within 5m of an exposed overhead electricity power line,

32. The development application was notified to Ausgrid in accordance with cl 45 of SEPP Infrastructure. Ausgrid raised no objection subject to the imposition of standard conditions of consent. Condition 4 of the consent mandates compliance with those requirements.

33. Clauses 101 and 102 of SEPP Infrastructure require consideration of access and traffic noise on roads with high traffic volumes. Condamine Street is one such road and in this regard the applicant has prepared an acoustic report to address the criteria. Condition 34 of the proposed consent condition mandates compliance with that acoustic report.

34. All vehicular access to the site will be from the widened Somerville Place and the traffic report lodged with the application concludes that there will be less traffic impact post development and therefore no noticeable impact on Condamine Street.

35. The Council supports the findings of both reports. Accordingly, I am satisfied that the provisions of both clauses are met.

36. The development includes works within a classified road (Condamine Street) that require the concurrence of Transport for NSW (TfNSW) under s 138 of the Roads Act 1993. Concurrence from TfNSW was granted subject to the imposition of conditions of consent. Condition 3 of the proposed consent mandates compliance with the requirements of TfNSW. Accordingly, I am satisfied that the provisions of s 138 are met.

37. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development applies to the erection of a residential flat building. A Design verification statement (DVS) has been prepared by Sean Gartner registered architect dated 31 January 2022. The DVS addresses the latest plans and provides certification that the provisions of the policy are met.

38. The grant of development consent will be deferred commencement pursuant to draft condition of consent No 1. This condition requires the developer to enter into a VPA with Council pursuant to s 7.4 of the EP&A Act to dedicate the strip of land described at par [5] adjacent to Somerville Place for the purpose of road widening. The VPA is to be entered into before the development consent becomes operative.

39. There are not any other matters contained in the EPA Reg that prevent grant of consent.

40. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable, and that the site is suitable for the development as proposed.

41. Matters raised by persons who made submissions to the Council concern traffic, parking, privacy, landscaping, and setbacks. I have considered these issues and the advice of the Council’s traffic engineers and, on the basis of that evidence and the agreed conditions of consent, am satisfied that the proposal is satisfactory and that the impacts can be appropriately managed.

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, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

44. For these reasons, I am satisfied that consent should be granted.

45. The Orders of the Court are:

1. The updated written request made pursuant to clause 4.6 of Warringah Local Environmental Plan 2011 (WLEP), seeking to vary the height of buildings development standard in clause 4.3 of WLEP, prepared by Boston Blyth Fleming dated 24 January 2022, is upheld.

2. The Appeal is upheld.

3. 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 $3,500.

4. Development Application DA2020/0824 for demolition of existing buildings and construction of a four storey shop top housing development at 321-331 Condamine Street, Manly Vale is approved subject to the conditions in Annexure A to this agreement.

Sue Morris

Acting Commissioner of the Court

Annexure A (494059, pdf)

Architectural Plans (4054398, pdf)

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Decision last updated: 11 February 2022