Mims Love Pty Ltd v Port Stephens Council

[2025] NSWLEC 1138

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mims Love Pty Ltd v Port Stephens Council [2025] NSWLEC 1138

Hearing dates:

Conciliation Conferences on 10 September, 14 and 28 October, 18 and 29 November 2024

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The request pursuant to cl 4.6 of the Port Stephens Local Environmental Plan 2013 to vary the development standard for height of building contained within cl 4.3 thereof, as prepared by Perception Planning dated 8 November 2024, is upheld.

(3) The request pursuant to cl 4.6 of the Port Stephens Local Environmental Plan 2013 to vary the development standard for minimum building street frontage contained within cl 7.23 thereof, as prepared by Perception Planning dated 27 September 2024, is upheld.

(4) Development consent is granted to Development Application No. 16-2023-14-1, as amended, for the construction of a residential flat building (four storeys, comprising three apartment levels, ground floor lobby and communal open space, lower ground floor lobby and basement car parking) and the demolition of an existing dwelling at Lot 12 DP15998 known as 70 Magnus Street, Nelson Bay, NSW, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variations – feasibility of site amalgamation – residential flat building – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 2

Land and Environment Court Act 1979, s 34

Roads Act, 1993, s 138

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 4

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

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6

Port Stephens Local Environmental Plan 2013, cll 2.2, 2.3, 2.6, 2.7, 4.1B, 4.3, 4.4, 4.6, 5.21, 7.1, 7.2, 7.6, 7.23

Cases Cited:

Karavellas v Sutherland Shire Council [2004] NSWLEC 251

Texts Cited:

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

Port Stephens Council Community Engagement Strategy 2022

Port Stephens Council Comprehensive Koala Plan of Management

Port Stephens Development Control Plan 2009

Category:

Principal judgment

Parties:

Mims Love Pty Ltd (Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
Sparke Helmore (Applicant)
Local Government Legal (Respondent)

File Number(s):

2024/71380

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by Port Stephens Council (Council) of Development Application No. DA 16-2023-14-1 (the DA) for a residential flat building on land described as Lot 12 DP 15998 known as 70 Magnus Street, Nelson Bay (the site).

2. The DA was lodged with the Council on 23 January 2023. The DA proposes the demolition of the existing dwelling on the site and construction of a four-storey residential flat building comprising three apartments, ground floor lobby, basement carpark and strata subdivision. Details of the proposal include:

1. Demolition of an existing two-storey dwelling and garage;

2. Construction of a 17.5 metre high residential flat building containing 3 x 3 bedroom units (located on levels 1-3);

3. Ground floor area containing pedestrian entrance, foyer, lobby, lift, utility rooms and communal area;

4. Basement car parking level containing six spaces; and

5. Site works, installation of services and landscaping throughout each level.

Conciliation Conference

3. 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 10 September 2024. I presided over the conciliation conference, which commenced with an on-site view, and was attended by one of the submitters who made verbal submissions to the Court.

4. The s 34 conciliation conference was adjourned to 14 October 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned a number of times to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

5. After the conciliation conference, and the assessment by the Council of the amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise that the contentions raised by the Council have been adequately addressed through the amended plans and conditions imposed on the development consent.

6. The key changes made in the amended DA arising from the conciliation conference are listed as follows:

1. Introduction of additional privacy measures such as screens and acoustic barriers;

2. Increased articulation in the western façade of the building;

3. Reduction in the appearance of bulk and scale of the building by using different materials and finishes on the top floor; and

4. Reduction in the footprint of the building on the ground floor street level.

7. A signed s 34 agreement with Annexure A (Conditions) and Annexure B (Jurisdictional Statement) was filed with the Court on 29 November 2024, with amended plans and additional material (the amended DA) as agreed between the parties filed on 2 December 2024. The s 34 agreement is supported by the agreed statement of jurisdictional prerequisites submitted by the parties.

8. 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. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA (as amended).

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The Council advises that the DA was made with the consent in writing of the owners of the site.

Community Participation

12. The DA was exhibited to the public from 9 February 2023 to 22 February 2023, in accordance with the provisions of the Port Stephens Council Community Engagement Strategy and s 7(1) of Div 2 in Sch 1 of the EPA Act. Four submissions were received.

13. The parties advise that they agree that the concerns raised in the public submissions have been adequately considered and addressed through the amendments to the DA as well as the conditions of consent proposed.

Conditions

14. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Port Stephens Local Environmental Plan 2013

15. The Port Stephens Local Environmental Plan 2013 (the LEP) applies to the site and to the proposed development, as follows:

1. The site is zoned R3 – Medium Density Residential Zone pursuant to cl 2.2 of the LEP. Residential flat buildings are permissible with consent in the R3 zone;

2. Pursuant to cl 2.3 of the LEP, the consent authority is required to have regard to the zone objectives. The parties advise that consideration has been given to the objectives of the R3 Zone and the parties agree the proposed development is consistent with the objectives for the R3 Zone;

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

4. The DA seeks consent for demolition of the existing building under cl 2.7 of the LEP and strata subdivision under cl 2.6 of the LEP, both of which require development consent under the relevant clause;

5. The parties advise that cl 4.1B of the LEP applies to the site because the DA proposes a residential flat building. Clause 4.1B requires a minimum lot size of 450m² for a residential flat building in the R3 zone. The site is approximately 490.7m² in area and complies with this development standard;

6. Pursuant to cl 4.3 of the LEP the maximum height of buildings (HoB) on the site is 17.5m; and

1. The parties advise that the maximum height of the proposed development (as amended) is 18.25 metres at the northern end of the building and so does not comply with cl 4.3;

2. An application to vary the HoB development standard under cl 4.6 of the LEP prepared by Perception Planning dated 8 November 2024 was submitted with the amended DA. The parties advise that they agree that the cl 4.6 written request to vary the HoB development standard adequately addresses the matters required to be demonstrated by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the HoB development standard and the objectives for development within the R3 zone, pursuant to clause 4.6(4);

3. I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the HoB development standard is acceptable noting that:

1. The highest point of the proposed development measures 18.25m above the natural ground level, resulting from the fall in topography of the site, and the proposed variation in the HoB development standard is 750mm or 4.285%;

2. The non- compliant portions of the proposed development do not impact on the architectural merits of the proposed building;

3. The proposed development demonstrates consistency with the desired height and building typology within the locality without adversely affecting the character of the existing streets; and

4. The proposed development does not detract from existing development sites that are yet to be redeveloped.

4. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the HoB development standard, notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

5. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. Given the sloping topography of the site, a compliant building height would not improve the building’s appropriateness in the context and character of the area;

2. Although there is a minor height variation, the proposed residential flat building achieves substantial compliance with the DCP and ADG controls relating to overshadowing, privacy, view sharing and amenity impacts on adjoining properties;

3. Architectural elements are incorporated in the design to reduce the impact of the building’s height, including the provision of a flat roof and concentrating the extent of built form on each level to the east (front boundary); and

4. The minor variation in building height will enable a floor to ceiling height of each level of 3.2m to facilitate waterproofing;

6. Approval of the proposed development will be in the public interest for the reasons provided above (at [15(6)(e)] above), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the R3 Medium Density Residential zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt;

7. Pursuant to cl 4.4 of the LEP, the site is subject to a maximum Floor Space Ratio (FSR) of 2.5:1. The parties advise that the proposed development has an FSR of 1.15:1 and therefore complies with cl 4.4 of the LEP;

8. Clause 5.21 of the LEP relates to Flood Planning. The parties advise that the site is not located within the flood planning area, and accordingly cl 5.21 does not apply to the DA;

9. Clause 7.1 of the LEP relates to acid sulfate soils. The parties advise that the site is mapped as Class 5 Land. The parties advise that:

1. For land mapped as Class 5, cl 7.1 of the LEP requires development consent for the carrying out of works with 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land;

2. The DA proposes excavation works of 3.1m to construct the basement level, therefore development consent under this clause is not required for those works; and

3. The parties agree that the proposed development, therefore satisfies the requirements of cl 7.1 of the LEP;

10. Clause 7.2 of the LEP relates to earthworks. The DA proposes earthworks for excavation of the basement level, therefore cl 7.2 of the LEP applies. The parties advise that the Council undertook an assessment of the earthworks and considered the impact on adjoining properties, erosion and sediment, and drainage, and is satisfied that this has been appropriately considered in the Geotechnical Investigation prepared by Hunter Civilab (reference: C1564-GI-001-Rev1, dated 24 March 2023), the Erosion and Sediment Control Plan and the Stormwater Management Plan submitted with the DA;

11. Clause 7.6 of the LEP relates to essential services. Under cl 7.6(1) of the LEP, development consent must not be granted to development unless the consent authority is satisfied that any services that are essential for the development are available or that adequate arrangements have been made to make them available when required; and the parties advise that:

1. Reticulated water and sewer are located in the Magnus Street road reserve and the RE1 reserve to the north, telecommunications and electricity are available via underground conduit or above ground poles in Magnus Street, and the DA includes a stormwater strategy. The vehicular access is from Magnus Street and is to be altered with the driveway access subject to approval under s 138 of the Roads Act 1993; and

2. The Council is satisfied that the essential services for the development are available or adequate arrangements have been made to make them available when required.

12. Clause 7.23 of the LEP relates to minimum building street frontages for development in Zones R3 and E1 and is a development standard that has the objective of encouraging amalgamation of lots to ensure that buildings have appropriate horizontal proportions compared to their vertical proportions. The parties advise that the site is identified in the Precinct Areas Map of the LEP as being part of the Nelson Bay Precinct, therefore cl 7.23 is applicable to the DA; and

1. The building street frontage for the proposed development is 12.190m, so it does not comply with the minimum building street frontage development standard. However, the clause includes two mechanisms through which a consent authority may grant development consent, notwithstanding non-compliance with the minimum building street frontage development standard:

1. Cl 7.23(4) permits the consent authority to grant development consent where the building does not meet the minimum street frontage requirements where it is satisfied that achieving the minimum street frontage is not possible and the building is otherwise consistent with the provisions of the LEP; and

2. Cl 7.23(5) states that cl 4.6 may operate to vary the minimum building street frontage development standard, and so permits an applicant to provide a cl 4.6 written request to vary this development standard;

2. The Applicant has provided a written request under cl 4.6 of the LEP justifying the contravention of the minimum building street frontage development standard;

3. The Council has advised that it is satisfied that:

1. Achieving the minimum street frontage is not possible because it has been demonstrated the amalgamation with either of the neighbouring lots to the east or west is not possible;

2. the erection of the building is consistent with the other relevant provisions of the LEP and demonstrates orderly development of the site;

3. the flexibility afforded by cl 7.23(4) of the LEP should be applied to the proposed development and development consent can be granted under cl 7.23(4); and

4. non-compliance with the development standard is reasonable under the planning principle set out in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 because amalgamation of the site with a neighbouring lot is not feasible;

4. I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the minimum building street frontage development standard is acceptable noting that:

1. The height of the proposed development presenting to Magnus Street (the site’s frontage) is 12.32m, significantly less than at the rear of the site (due to the slope of the land), so that an appropriate built form is achieved when viewed from the street;

2. The ratio of the LEP controls for HoB to minimum street frontage is 17.5m to 15m, equating to a ratio of 1.2:1. The ratio of the building’s HoB (as it presents to the street) to street frontage is 13.07m (as amended) to 12.190m, which equates to a ratio of 1.07:1. Accordingly, the difference between a compliant built form and the built form under the Proposed Development is very small; and

3. Amalgamation of the site with either of the sites to the east or west of the site is not considered to be feasible;

5. I am satisfied that compliance with the minimum building street frontage development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the minimum building street frontage development standard, notwithstanding the minimum building street frontage width for the reasons provided within the Applicant’s written request, which I adopt;

6. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the minimum building street frontage development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. A compliant street frontage width cannot realistically be achieved through site amalgamation in this location;

2. Articulation, setbacks, and design controls to reduce privacy and amenity impacts have been incorporated into the proposal to ensure that the development is appropriate within the residential setting. A wider street frontage would not result in a notable improvement in compliance with the ADG objectives; and

3. Requiring full compliance with the 15m street frontage development standard would inhibit the highest and best use of the site for a residential flat building.

7. Approval of the proposed development will be in the public interest for the reasons provided above (at [15(6)(e)] above), and because the proposed development is consistent with the objectives for the minimum building street frontage development standard for development within the R3 Medium Density Residential zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The parties advise that Ch 2 (Vegetation in Non-Rural Areas) and Ch 4 (Koala Habitat Protection) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) apply to the site; and

1. An Arborist Report for the DA was prepared by Abacus Tree Services. The Arborist Report determined that the proposed development does not require the removal of any existing vegetation on the site. Notwithstanding, it is noted there are two trees within close proximity to the site located on 68 and 72 Magnus Street. Both of these respective trees are proposed to be retained under the proposed development of the site;

2. A condition has been imposed in the conditions of consent requiring compliance with the recommendations that have been included in the Arborist Report relating to the protection of the root protection zones of these trees during construction; and

3. The site is not mapped as containing any koala habitat under the Port Stephens Council Comprehensive Koala Plan of Management and is clear of remnant vegetation. The parties advise that the proposed development is therefore considered unlikely to impact koalas and is therefore consistent with the chapter.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. The site is located within the Coastal Environment and Coastal Use Areas. As such, ss 2.10, 2.11 and 2.12 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) apply to the site.

18. The parties advise that compliance with ss 2.10, 2.11 and 2.12 of the Resilience SEPP has been achieved with the proposed development as follows:

1. The proposed development is sufficiently setback from the coastal environment area, being the Port Stephens – Great Lakes Marine Park. Water runoff from the building will be managed through site stormwater management measures and directed to the existing public stormwater network along Magnus Street, as will sediment runoff during the construction process;

2. The proposed development will not impact on the existing and safe access to and along the foreshore; and

3. The visual impact of the proposed development from the significant vistas of the Nelson Bay Marina is negligible.

19. Section 4.6 of the Resilience SEPP requires that a consent authority must not grant consent to any development on the land unless it has 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.

20. The Applicant advises that the site has a history of residential use and there is no evidence that contaminating activities have historically occurred on the site.

21. The parties advise that the Council has considered whether the land is contaminated and has concluded that the site is not contaminated.

22. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

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

23. State Environmental Planning Policy (Building Sustainability Index:BASIX) 2004 (BASIX SEPP) applies to the proposed development. The parties advise that:

1. A valid BASIX certificate (certificate no. 1326820M_02, prepared by Marline Newcastle P/L dated 29 November 2022) has been submitted with the DA which demonstrates that the water, thermal comfort and energy requirements for the proposal have been achieved;

2. The amendments made to the proposed development since the BASIX certificate was issued do not result in the development differing materially from the description contained in the BASIX certificate, accordingly an amended BASIX certificate is not required in accordance with s 37 of the EPA Regulation; and

3. A condition has been imposed in the conditions of consent requiring compliance with the commitments in the BASIX Certificate.

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

24. State Environmental Planning Policy No 65 –Design Quality of Residential Apartment Development (SEPP 65) only applies where the proposed development contains 4 or more dwellings, and so does not apply to the DA.

25. However, the parties advise that Chapter C5 of the Port Stephens Development Control Plan 2009 (the DCP) nominates that any residential flat building should refer to SEPP 65 for design assessment considerations. Accordingly, consideration of SEPP 65 would fall under consideration of the DCP and so is to be given less weight than an environmental planning instrument (EPI) in its consideration (s 3.42 of the EPA Act).

Port Stephens Development Control Plan 2009

26. The parties advise that they agree that the proposed development broadly complies with the requirements of the DCP and that they consider that:

1. The proposed development is largely compliant and consistent with the controls set out in the Apartment Design Guide (ADG) as referenced in the DCP (refer to [23]);

2. Attention has been paid to managing the impacts of the proposed development where the numeric setback controls contained in the ADG cannot be achieved on the long, narrow and sloping site; and

3. The Amended Noise Assessment by Rapt Consulting dated 18 October 2024 and the Amended Traffic Impact Assessment by Amber Organisation dated 27 September 2024 have provided sufficient information to address Council’s contentions about noise, traffic and parking.

Conclusion

27. Having considered the advice of the parties provided above at [11]–[25], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

28. Further, 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.

29. 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.

30. The Court notes:

1. Port Stephens Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No. 16-2023-14-1 made on 29 November 2024 to rely on the documents specified below:

Plan / Supporting Document	Reference / Revision	Prepared by	Date
Amended Architectural Plans	Issue E	BDA Architects	1 November 2024
Visual Impact Assessment Addendum	Revision 1.2	Perception Planning	14 October 2024
Amended Noise Assessment	Revision 3	Rapt Consulting	18 October 2024
Amended clause 4.6 written request to vary cl 7.23 minimum building street frontage standard	Revision 3	Perception Planning	27 September 2024
Clause 4.6 written request to vary cl 4.3 height of building standard	Revision 2	Perception Planning	8 November 2024
Amended Traffic Impact Assessment	Ref: 481	Amber Organisation	27 September 2024
Stormwater Management Plan – Lower Ground, Drawing No Cl-0200	Revision C	BG&E Engineering	27 September 2024

2. The amended DA was filed with the Court on 2 December 2024.

3. BASIX Certificate No 1326820M_02 prepared by Marline Newcastle P/L dated 29 November 2022 was submitted with the DA.

Orders

31. The Court orders that:

1. The appeal is upheld.

2. The request pursuant to cl 4.6 of the Port Stephens Local Environmental Plan 2013 to vary the development standard for height of building contained within cl 4.3 thereof, as prepared by Perception Planning dated 8 November 2024, is upheld.

3. The request pursuant to cl 4.6 of the Port Stephens Local Environmental Plan 2013 to vary the development standard for minimum building street frontage contained within cl 7.23 thereof, as prepared by Perception Planning dated 27 September 2024, is upheld.

4. Development consent is granted to Development Application No. 16-2023-14-1, as amended, for the construction of a residential flat building (four storeys, comprising three apartment levels, ground floor lobby and communal open space, lower ground floor lobby and basement car parking) and the demolition of an existing dwelling at Lot 12 DP15998 known as 70 Magnus Street, Nelson Bay, NSW, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 11 March 2025