Morfosis Architects Pty Ltd v Liverpool City Council

[2020] NSWLEC 1435

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morfosis Architects Pty Ltd v Liverpool City Council [2020] NSWLEC 1435

Hearing dates:

Conciliation conference on 12 August 2020

Date of orders:

18 September 2020

Decision date:

18 September 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

(2) The appeal is upheld.

(3) Development application DA-488/2019 seeking the demolition of existing structures, removal of trees and construction of a 3-5 storey residential flat building development with basement car parking and associated landscaping is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – residential flat building – breach of height development standard – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Liverpool Local Environmental Plan 2008

State Environmental Planning Policy No 55 – Remediation of Land

Category:

Principal judgment

Parties:

Morfosis Architects Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Conomos Legal (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2019/388711

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a residential flat building at a site comprising 113-115 Nuwarra Road and 51 Maddecks Avenue, Moorebank. The proposed residential flat building has been designed as a 3-5 storey building with the 5-storey element of the design to the north on the corner of Nuwarra Road and Maddecks Avenue, the three storey portion to the rear of the site where residential properties and a childcare centre adjoins the site, and an area of landscaped communal open space without built form in the south west portion where the boundary adjoins single dwelling houses. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the Council and the applicant that was reached at a conciliation conference.

2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

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 12 August 2020. I presided over the conciliation conference.

4. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments occasioned by the grant of leave include the deletion of a portion of the development that comprised two attached dwellings, and the addition of two units to create a fifth storey presenting to the corner of Maddecks Avenue and Nuwarra Road. The amended development application is for a building that has been designed to ensure that a suitable transition in height is achieved to the property adjoining the southern boundary (childcare centre) and to the R3 – Medium Density zone to the southwest. This is achieved by maintaining an area of landscaped communal open space at the ground level in the south-west portion of the site adjacent to the R3 – Medium Density Residential zone, and constraining the built form to 3 storeys in the southern side of the site where the boundary adjoins the childcare centre. The additional floor space that otherwise could be placed in those locations forms a fifth storey comprising two units and communal open space at the northern-corner element of the building, where it presents to the corner of Nuwarra Road and Maddecks Avenue, a location that does not affect the childcare centre or impact residents within the R3 – Medium Density Residential zone.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purposes of a residential flat building, which is a permissible use in the R4 – High Density Residential Zone in which the site is located, pursuant to the provisions of the Liverpool Local Environmental Plan 2008 (“LLEP 2008”).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 15m, pursuant to cl 4.3 of the LLEP 2008. The proposed maximum height of 17.605m represents a contravention of 2.605m above the numerical standard, where 1.61m of this is measured to the roof form of the fifth storey at the northern portion of the building, and 2.605m is measured to the top of the lift overrun. As such, the contravention is confined to the lift overrun, the shade around the roof top communal open space, and a portion of the fifth storey. I am satisfied that the written request of Chapman Planning Pty Ltd dated 18 August 2020, lodged pursuant to cl 4.6 of the LLEP 2008, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for bulk (which complies with the floor space ratio) to be sited in a location that addresses the corner and does not cause adverse amenity impacts to adjoining uses or the adjoining R3 Medium Density Residential zone. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development does not breach any other development standards in the LLEP 2008 or any other environmental planning instrument.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated.

• The amended development application is supported by an updated BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

2. The appeal is upheld.

3. Development application DA-488/2019 seeking the demolition of existing structures, removal of trees and construction of 3-5 storey residential flat building development with basement car parking and associated landscaping is approved subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (356125, pdf)

Plans (5009672, pdf)

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Decision last updated: 18 September 2020