Pacific Oasis 25 Lachlan St Waterloo Development Pty Ltd v The Council of the City of Sydney

[2021] NSWLEC 1689

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pacific Oasis 25 Lachlan St Waterloo Development Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1689

Hearing dates:

Conciliation conference on 20 September and 20 October 2021

Date of orders:

11 November 2021

Decision date:

11 November 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000 within 28 days of judgment being handed down.

(2) The appeal is upheld.

(3) Development Consent is granted to DA/2020/1547 for demolition of the existing structures and construction of a shop top housing development at 25 Lachlan Street, Waterloo, subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – residential flat building – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50, 55

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Infrastructure) 2007, cl 102

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.21, 6.14, 6.21, 7.14

Texts Cited:

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

Category:

Principal judgment

Parties:

Pacific Oasis 25 Lachlan St Waterloo Development Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2021/150762

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the Council of the City of Sydney (the Respondent) of Development Application DA D/2020/1457 seeking consent for the demolition, remediation and construction of shop top housing containing commercial tenancies, 50 residential apartments and public domain works at a site variously identified as 25-27 Lachlan Street, and 19-21 Lachlan Street Waterloo, and 1-1A Amelia Street, 3 Amelia Street and 5 Amelia Street, Waterloo.

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 was held on 20 September 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, subject to amended documents for which an adjournment was granted. This decision involved agreement by the Council as the consent authority to amendments to the application under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 1 November 2021.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

6. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [26].

7. According to the Sydney Local Environmental Plan 2012 (SLEP), the site is partly zoned B4 Mixed Use, and partly zoned SP2 Infrastructure, where adjacent to Lachlan Street. Shop top housing is proposed within the B4 Mixed Use zone, where development of this type is permitted with consent, and where consistent with the objectives of the zone being:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To ensure uses support the viability of centres.

8. Development within the SP2 zone is limited to public domain works, which are ancillary for the purposes of a ‘classified road’ which is the permissible development within the SP2 zone, and where consistent with the objectives for development in the SP2 zone as follows;

•  To provide for infrastructure and related uses.

•  To prevent development that is not compatible with or that may detract from the provision of infrastructure.

9. The proposed development is within the maximum height of building development standard at cl 4.3 of the SLEP, which is described in terms of Relative Levels on the Height of Buildings Map at cl 4.3(2).

10. The proposal seeks the benefit of additional floor space expressed as 0.5:1 floor space ratio (FSR) via the provision of the Public Benefit Offer dated 19 October 2021 (the Offer) that has been accepted by the Respondent. The Offer undertakes the dedication of land within the SP2 zone as a form of community infrastructure in accordance with cl 6.14 of the SLEP, and a condition of consent is agreed between the parties that defers commencement of the operation of consent until the terms of a Voluntary Planning Agreement are demonstrated to the satisfaction of the Respondent.

11. Accordingly, the FSR permitted for the site pursuant cl 4.4(2) is 1.5:1 as shown on the land zoning map, with an additional 0.5:1 on the basis of the Offer. The proposed development complies with the resulting FSR.

12. Clause 5.21 of the SLEP requires the consent authority, or the Court on appeal, to be satisfied in respect of flood planning. On the basis of the Flood Impact Assessment prepared by Cardno dated 15 December 2020, I am satisfied that the proposed development is consistent with the City of Sydney’s Floodplain Management Policy.

13. As the proposal is for a new building to which the SLEP applies, cl 6.21 of the SLEP requires that development consent not be granted unless, in the opinion of the consent authority, or the Court on appeal, the proposed development exhibits design excellence (subcl (3)), by reference to those matters at subcl (4). On the basis of adjustments to the retail tenancies, amendments to the lower ground floor plan and egress, western façade improvements to the booster location, relocation of communal stairs linking lobby to courtyard to improve privacy for units on upper ground, enclosure of the music room enclosed on level 1, amendments to unit plans and landscape design, I am of the opinion that the proposed development, as amended, exhibits design excellence. In arriving at this conclusion, I am assisted by the Respondent’s assessment of amendments to the facade of the building that improve the building’s architectural expression and reflect its residential use, including additional windows and privacy screens which provide architectural interest to the building, and regular solid balustrade treatment to all balconies.

14. The site is identified on the Acid Sulfate Soils Map as Class 5, and the Applicant relies upon an Acid Sulfate Soil Management Plan prepared by EI Australia dated 30 August 2021 in satisfaction of cl 7.14(3) of the SLEP.

15. As the development application is for residential apartment development, the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply.

16. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide.

17. Clause 30 of SEPP 65 precludes the grant of consent if an application does not demonstrate that adequate regard has been given to the design quality principles at Schedule 1, and the objectives specified in the Apartment Design Guide for the relevant design criteria.

18. Relatedly, cl 50(1A) of the EPA Regulation requires an application for residential apartment development to be accompanied by a statement by a qualified designer, defined by cl 3 as a person registered under the Architects Act 2003, and in a form set out at cl 50(1AB) of the EPA Regulation.

19. The statement by the qualified designer must attest to certain things set out at cl 3A of the EPA Regulation, including attestations in respect of the design quality principles, and the objectives specified in the Apartment Design Guide for the relevant design criteria. A complying design statement prepared by the architect Mr Ben Pomroy (Arch Reg No 7918) accompanies the application.

20. On the basis of the Detailed Site Investigation prepared by EIS dated 6 December 2016; the Interim Advice Letter prepared by Harwood Environmental Consultants dated 17 September 2021; and the Additional Site Investigation dated 26 August 2021, and Remediation Action Plan both prepared by EIAustralia 31 August 2021, I am satisfied that the site will be made suitable in accordance with cl 7 of the State Environmental Planning Policy No 55—Remediation of Land.

21. I am also satisfied that the proposed development has adequate measures in place to ensure that acoustic levels set out at cl 102(3) of State Environmental Planning Policy (Infrastructure) 2007 will not be exceeded. In forming this opinion of satisfaction, I note the recommendations for construction details identified in the Noise Impact Assessment prepared by White Noise, dated 2 July 2021.

22. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No. 1162188M_02 dated 27 October 2021), prepared by Building Sustainability Assessments in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

23. 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.

24. 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.

Orders

25. The Court notes that:

1. The Council of the City of Sydney, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application D/2020/1547 per the documentation listed at [25(4)].

2. The Court notes that the amended development application was lodged on the planning portal on 20 October 2021 and the amended BASIX was lodged on 27 October 2021.

3. The Court notes that the amended development application was filed with the Court on 20 October 2021 and the amended BASIX was filed with the Court on 1 November 2021.

4. By consent, the development application is amended per the following documentation:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Coversheet	TP00.00	F	18 October 2021	Rothelowman
Development Summary	TP00.01	H	18 October 2021	Rothelowman
Existing and Demolition Plans	TP00.03	G	18 October 2021	Rothelowman
Proposed Site Plan	TP00.04	G	18 October 2021	Rothelowman
Basement 2	TP01.00	J	18 October 2021	Rothelowman
Basement 1	TP01.01	J	18 October 2021	Rothelowman
Lower Ground	TP01.02	K	18 October 2021	Rothelowman
Upper Ground Level	TP01.03	K	18 October 2021	Rothelowman
Level 1	TP01.04	J	18 October 2021	Rothelowman
Level 2-4	TP01.05	J	18 October 2021	Rothelowman
Level 5	TP01.08	H	18 October 2021	Rothelowman
Roof Plan	TP01.09	H	18 October 2021	Rothelowman
North Elevation	TP02.01	H	18 October 2021	Rothelowman
East Elevation	TP02.02	H	18 October 2021	Rothelowman
South Elevation	TP02.03	J	18 October 2021	Rothelowman
West Elevation	TP02.04	J	18 October 2021	Rothelowman
Section 1	TP03.01	G	18 October 2021	Rothelowman
Section 2	TP03.02	G	18 October 2021	Rothelowman
Section 3	TP03.03	G	18 October 2021	Rothelowman
Section 5	TP03.04	G	18 October 2021	Rothelowman
Ramp Sections	TP03.08	F	18 October 2021	Rothelowman
Facade Details	TP03.10	C	18 October 2021	Rothelowman
GFA Plans	TP04.01	H	18 October 2021	Rothelowman
Communal Open Space and Deep Soil	TP04.03	G	18 October 2021	Rothelowman
Solar Compliance	TP04.04	G	18 October 2021	Rothelowman
Cross Ventilation Compliance	TP04.05	G	18 October 2021	Rothelowman
Ventilation Response	TP04.05	F	18 October 2021	Rothelowman
Acoustic Response	TP04.07	F	18 October 2021	Rothelowman
Total Floor Area	TP04.08	F	18 October 2021	Rothelowman
Land Dedication Plan	TP04.09	F	18 October 2021	Rothelowman
Proposed Shadow Diagrams	TP05.01	G	18 October 2021	Rothelowman
Solar Pov-June 21	TP05.10	G	18 October 2021	Rothelowman
Solar Pov-June 21	TP05.11	G	18 October 2021	Rothelowman
Solar Pov-March 21	TP05.30	F	18 October 2021	Rothelowman
Storage Plans and Schedule	TP06.01	F	18 October 2021	Rothelowman
Adaptable Unit Plans	TP06.02	F	18 October 2021	Rothelowman
Adaptable Unit Plans 2	TP06.03	F	18 October 2021	Rothelowman
Waste Management Strategy	TP06.04	F	18 October 2021	Rothelowman
Notification	TP07.05	F	18 October 2021	Rothelowman
Landscape Plans
Cover	L-1	C	18 October 2021	Turf
Contents	L-2	C	18 October 2021	Turf
Site Analysis | Context	L-3	C	18 October 2021	Turf
Vision | Landscape	L-4	C	18 October 2021	Turf
Place Principles | Landscape	L-5	C	18 October 2021	Turf
Landscape Design Statement	L-6	C	18 October 2021	Turf
Site Plan | Landscape Public Domain Plan	L-7	C	18 October 2021	Turf
Lower Ground | Landscape Plan	L-8	C	18 October 2021	Turf
Lower Ground | Planting Plan	L-9	C	18 October 2021	Turf
Lower Ground | Lighting Plan	L-10	C	18 October 2021	Turf
Upper Ground | Landscape Plan	L-11	C	18 October 2021	Turf
Upper Ground | Planting Plan	L-12	C	18 October 2021	Turf
Upper Ground | Lighting Plan	L-13	C	18 October 2021	Turf
Level 1 | Landscape Plan	L-14	C	18 October 2021	Turf
Level 1 | Planting Plan	L-15	C	18 October 2021	Turf
Level 1 | Lighting Plan	L-16	C	18 October 2021	Turf
Level 2 – 4 | Landscape Plan	L-17	C	18 October 2021	Turf
Level 2 - 4 | Planting Plan	L-18	C	18 October 2021	Turf
Level 2 - 4 | Lighting Plan	L-19	C	18 October 2021	Turf
Level 5 | Landscape Plan	L-20	C	18 October 2021	Turf
Level 5 | Planting Plan	L-21	C	18 October 2021	Turf
Level 5 | Lighting Plan	L-22	C	18 October 2021	Turf
Level 5 – Pergola Structure	L-23	C	18 October 2021	Turf
Planting Palette	L-24	C	18 October 2021	Turf
Feature Elements & Material Palette	L-25	C	18 October 2021	Turf
Typical Details | Planting	L-26	C	18 October 2021	Turf
Soil Depth and Volume Plans	L-27	C	18 October 2021	Turf
End	L-28	C	18 October 2021	Turf
Stormwater and Sedimental Controls Plans					Stormwater and Sedimental Control Plans
General Notes	D01	B	23 September 2021	SYJ Consulting Engineers
Stormwater Management Plan -1	D02	B	23 September 2021	SYJ Consulting Engineers
Basement Stormwater Management Plan	D03	B	23 September 2021	SYJ Consulting Engineers
Stormwater Details	D04	B	23 September 2021	SYJ Consulting Engineers
Site Sediment & Erosion Control Plan	D05	B	23 September 2021	SYJ Consulting Engineers
External Controls Plans
General Notes	C0100	2	23 September 2021	SYJ Consulting Engineers
External Civil Works Site Plan Sheet 1	C0101	2	23 September 2021	SYJ Consulting Engineers
External Civil Works Site Plan Sheet 2	C0102	2	23 September 2021	SYJ Consulting Engineers
Subdivision Plan
Plan of Subdivision	14804	-	1 July 2021	Marin Xue
Reports
Schedule of Renders and Materials prepared by Rothelowman dated September 2021
SEPP 65 Design Quality Principles Statement prepared by Rothelowman dated 29 September 2021
Amended Noise Impact Statement prepared by White Noise Acoustic dated 15 September 2021
WSUD Report prepared by SYJ Consulting Engineers dated 23 September 2021
Schedule of Renders and Material prepared by Rothelowman dated September 2021
Public Benefit Offer dated 19 October 2021
Civil Report response to contentions dated September 2021
Interim Advice prepared by Harwood Environmental Consultants dated 17 September 2021
Acid Sulphate and Soil Management Plan prepared by eiaustralia dated 30 August 2021
Additional Site Investigation prepared by eiaustralia dated 26 August 2021
Remediation Action Plan prepared by eiaustralia dated 31 August 2021
BASIX Certificate 1162188M_02 and stamped plans dated 27 October 2021
Nathers Assessor Certificate dated 27 October 2021

26. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000 within 28 days of judgment being handed down.

2. The appeal is upheld.

3. Development Consent is granted to DA/2020/1547 for demolition of the existing structures and construction of a shop top housing development at 25 Lachlan Street, Waterloo, subject to conditions contained in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

Annexure A (updated) (527305, pdf)

**********

Amendments

04 January 2022 - Pursuant to UCPR r 36.17, and by the Court’s own motion, the conditions of consent at Annexure A are amended to correct the calculation of floor space, and the quantum of contributions arising.

Decision last updated: 04 January 2022