Olter Investments Pty Ltd v City of Canada Bay Council

[2022] NSWLEC 1620

Land and Environment Court

New South Wales

Medium Neutral Citation:

Olter Investments Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1620

Hearing dates:

Conciliation conference held 8 August, 2 and 27 September, and 7 October 2022, final agreement filed 10 October 2022

Date of orders:

10 November 2022

Decision date:

10 November 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA2021/0082 and rely upon the amended plans and documents referred to at Annexure B.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CBLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA2021/0082 (as amended) for the demolition of existing structures, site consolidation and construction of a new mixed use development, comprising basement car parking, two retail tenancies and thirty-one residential apartments, the removal of three existing driveways and construction of a new driveway at 71-75 Victoria Road, Drummoyne, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – shop top housing – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 50, 55

Land and Environment Court Act 1979, s 34

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.6, 5.21, 6.1, 6.2, 6.5, 6.10, 6.11 6.13

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.119, 2.120

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

NSW Department of Planning, Apartment Design Guide (2015)

Category:

Principal judgment

Parties:

Olter Investments Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
A Adams (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/99967

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2021/0082 (the DA) by the City of Canada Bay Council (the Respondent). The DA sought consent for demolition of existing structures, site consolidation and construction of a new mixed use development comprising basement car parking, two retail tenancies, four ‘live/work’ tenancies and twenty-nine residential apartments at 71-75 Victoria Road, Drummoyne (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 August, 2 and 27 September, and 7 October 2022. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view before resuming by Microsoft Teams.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the DA has been amended, prior to and during the conciliation conference, so as to resolve the contentions initially raised by the Respondent, which in turn related to issues of permissibility, exceedance of the relevant height of building and floor space ratio (FSR) development standards, proposed dwelling mix, apartment design and amenity, heritage, waste management, stormwater management, and vehicular access amongst other contentions.

6. The design amendments include changes to eliminate the ‘live/work’ units resolving the question of permissibility, amendments to the form of the building with a resultant reduction in the FSR, changes to the vehicle access arrangements, relocation of the on-site detention tank, amendments to the Victoria Road awning, and additional landscaping to the level 1 roof top communal open space.

7. 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 amended DA.

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

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 21 May to 11 June 2021. Nine submissions were received by the Respondent. The parties agree that the amended DA satisfactorily resolves the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Canada Bay Local Environmental Plan 2013 (CBLEP) is the relevant local environmental planning instrument. The site is zoned B4 Mixed Use, and the proposed development - characterised as a mixed use, shop top, residential apartment building - is permissible with consent.

12. The parties agree, and I am satisfied, that all principal development standards of the CBLEP have been met by the DA, with the exception of cl 4.3, Height of buildings, which establishes a height of building standard of 20m for the site.

13. In such an instance, cl 4.6(3) of the CBLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

14. Clause 4.6(4) of the CBLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required 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 particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

15. Additionally, cl 4.6(4)(b) of the CBLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

16. As required by cl 4.6 of the CBLEP, the Applicant has provided a written request (prepared by SJB Planning and dated 18 August 2022) seeking to vary the height of buildings development standard.

17. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard for the following reasons:

1. The amended DA exceeds the 20m height of building standard. The development proposes a maximum height of 24.47m above existing ground level, which is 4.47m greater than the standard, or a maximum variation of approximately 22%.

2. Of note, the extent of the building height exceedance is generally limited to a lift over run, parapet planters and associated structures which provide shade and shelter to a roof top communal open space. These portions of the building are located centrally within the site and tend to recede from view when observed from public vantage points in the immediate vicinity. The proposed building form also relates closely to the existing adjacent building along Victoria Road.

3. The objectives of the CBLEP Zone B4 Mixed Use land use zone include providing a mix of compatible land uses and integrating suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. I am satisfied the amended DA meets these objectives.

4. The objectives of cl 4.3 of the CBLEP include to ensure buildings are compatible with the height, bulk and scale of the desired future character and positively contribute to the streetscape and public spaces, to protect the amenity of residential accommodation, neighbouring properties and public spaces, and to ensure that buildings respond to the natural topography of the area. I am satisfied the amended DA meets these objectives.

5. The amended DA resolves the Respondent’s contentions, and in particular the upper-most storey of the building has been amended to minimise visual impacts and reduce the perceived scale of the proposal across the site boundaries. I am satisfied the variation to the height of building development standard brings with it no material environmental impacts, a reduction in privacy or unreasonable overshadowing.

18. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to maximum building height and I find to uphold the written request.

19. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the CBLEP, Flood planning, the site is not identified within a flood planning area and consequently cl 5.21 is not enlivened by the DA.

20. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the CBLEP, Acid sulfate soils, the site is mapped within a Class 5 Acid Sulfate Soils area. The Applicant has provided a Preliminary and Detailed Site Investigation prepared by EI Australia and dated 27 October 2021, which concludes that the proposed works are unlikely to lower the water table and therefore an Acid Sulfate Soils Management Plan is not required.

21. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the CBLEP, Earthworks, the Applicant has provided a Preliminary Geotechnical Assessment prepared by EI Australia. This report provides a number of recommendations to avoid, minimise or mitigate impacts of the proposed excavation and earthworks. Agreed conditions of consent reflecting the report’s recommendations are imposed.

22. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.5 of the CBLEP, Active street frontages. The DA, as amended, incorporates retail tenancies fronting onto Victoria Road and Day Street which satisfied the active street frontage requirements.

23. The parties agree, and I am satisfied, that pursuant to cl 6.10 of the CBLEP, Public utility infrastructure, consent must not be granted for development at the site unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available. The site is currently serviced with water, electricity, stormwater and sewer services appropriate for the purposes of the amended DA.

24. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.11 of the CBLEP, Mix of dwelling sizes in residential flat buildings and mixed use development. The amended DA provides at least 20% one bedroom apartments and at least 20% three bedroom apartments.

25. The parties agree, and I am satisfied, that pursuant to cl 6.13 of the CBLEP, Development in areas subject to aircraft noise, the Site is located within the 20-25 ANEF contour. The Applicant has provided an Amended Acoustic Assessment, prepared by Renzo Tonin and Associates, which confirms the required indoor design sound levels are achieved.

26. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate (dated 15 September 2022) has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

27. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The Applicant has provided a Preliminary and Detailed Site Investigation prepared by EI Australia dated 27 October 2021. The report concluded there was no evidence of gross or widespread contamination of soil, groundwater, or ground gas at the site, and that the site can be made suitable for the proposed land use provided the report’s recommendations are implemented. The Applicant has subsequently prepared a Remediation Action Plan and agreed conditions of consent are imposed to ensure compliance with the Remediation Action Plan. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) is an additional relevant environmental planning instrument. In accordance with cl 2.119 of SEPP Transport and Infrastructure, the consent authority must not grant consent to development on land with a frontage to a classified road unless it is satisfied the development is safe and will not have an adverse effect on the safety, efficiency and ongoing operation of the classified road. The site has a frontage to Victoria Road, which is a classified road. I am satisfied the amended DA meets the requirements of cl 2.119 for the following reasons:

1. Vehicular access to the proposed development is not provided from Victoria Road, but rather from Day Street.

2. The Applicant’s Amended Traffic Impact Statement, prepared by Traffix concludes that the proposal will have no adverse impact on the ongoing operation of Victoria Road or other roads in the vicinity of the site.

3. The Applicant’s Amended Acoustic Assessment, prepared by Renzo Tonin and Associates, concludes that appropriate acoustic amenity can be achieved within the proposed apartments, subject to compliance with its recommendations. Agreed conditions of consent are imposed to reflect the recommendations of the report.

29. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, PBD Architects and its nominated architect Mr Paul Buljevic (NSW registered architect 7768), has prepared a Design Verification Statement, dated August 2022, fulfilling the requirements of cl 50(1AB) of the EPA Reg, and confirming that the amended DA achieves the Design Quality Principles set out in SEPP 65, and stating how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved.

30. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

31. The Court notes that:

1. Pursuant to cl 55(1) of the EPA Reg, the Applicant has amended the DA with the agreement of the Respondent.

2. The amended DA documents were uploaded to the NSW Planning Portal on 26 September 2022.

3. The Applicant has filed the amended DA with the Court on 26 September 2022.

Orders

32. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA2021/0082 and rely upon the amended plans and documents referred to at Annexure B.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

3. The Applicant’s written request, pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CBLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA2021/0082 (as amended) for the demolition of existing structures, site consolidation and construction of a new mixed use development, comprising basement car parking, two retail tenancies and thirty-one residential apartments, the removal of three existing driveways and construction of a new driveway at 71-75 Victoria Road, Drummoyne, subject to the conditions of consent in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 10 November 2022