Para-ere Holdings Pty Ltd v Northern Beaches Council

[2024] NSWLEC 1138

Land and Environment Court

New South Wales

Medium Neutral Citation:

Para-ere Holdings Pty Ltd v Northern Beaches Council [2024] NSWLEC 1138

Hearing dates:

Conciliation conference on 1 February 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The applicant is to pay the respondent’s costs in the sum of $4,000, under s.8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of the date of these Orders.

(2) The appeal is upheld.

(3) Development Application No. 2022/2256, as amended, for demolition works and construction of a mixed use development with basement car parking, on land legally described as Lot 100 in DP1009880 and known as 22 Raglan Street, Manly, NSW, 2095, is determined by the grant of development consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7

Land and Environment Court Act 1979, s 34, 39

Environmental Planning and Assessment Regulation 2021, s 38

Manly Local Environmental Plan 2013, cll 4.3, 4.4, 4.6,5.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.9, 6.12 Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

State Environmental Planning Policy (Housing) 2021 Ch 4 and Sch 7

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

State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.48

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Para-ere Holdings Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

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

Solicitors:
Macpherson Kelley (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/212498

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2022/2256 for demolition works and construction of a mixed use development with basement car parking (the proposal), at 22 Raglan Street, Manly (the site), by Northern Beaches Council (the Council).

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 1 February 2024. I presided over the conciliation conference. 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.

3. 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 development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are:

Drawing No and Revision		Title		Prepared by	Date
Architectural Plans
1	Drawing No. DA-01 Revision C	Site Plan, Site Analysis		Carlisle Architects	21 February 2024
	Drawing No. DA-02 Revision C	Basement Plan			21 February 2024
	Drawing No. DA-03 Revision C	Ground Floor Plan			21 February 2024
	Drawing No. DA-04 Revision C	First Floor Plan			21 February 2024
	Drawing No. DA-05 Revision C	Second Floor Plan			21 February 2024
	Drawing No. DA-06 Revision C	Roof Plan			21 February 2024
	Drawing No. DA-08 Revision C	Elevations & Materials Board			21 February 2024
	Drawing No. DA-09 Revision C	Sections AA, BB			21 February 2024
	Drawing No. DA-10 Revision C	Section CC, Driveway Section			21 February 2024
	Drawing No. DA-11 Revision C	Perspectives 1			21 February 2024
	Drawing No. DA-12 Revision C	Perspectives 2			21 February 2024
	Drawing No. DA-13 Revision C	Perspectives 3			21 February 2024
	Drawing No. DA-23 Revision C	GFA Plans			21 February 2024
	Drawing No. DA-40 Revision C	Shadow Diagrams 1, 21 June – Winter			21 February 2024
	Drawing No. DA-41 Revision C	Shadow Diagrams 2, 21 June – Winter			21 February 2024
Landscape Plans
2	Drawing No. L-00 Revision C	Cover Page		Space Landscape Designs	27 February 2024
	Drawing No. L-01 Revision C	Landscape Plan Ground Floor			27 February 2024
	Drawing No. L-02 Revision C	Landscape Plan First and Second Floor			27 February 2024
	Drawing No. L-03 Revision C	Details and Specifications			27 February 2024
Reports / documents
3	Design Verification Statement – SEPP 65		Carlisle Architects		21 February 2024
4	Updated Clause 4.6 Variation Request – Floor Space Ratio		Boston Blyth Fleming Town Planners		28 February 2024
5	Updated Clause 4.6 Variation Request – Height of Buildings		Boston Blyth Fleming Town Planners		28 February 2024
6	Assessment of Proposal under Helou vs Strathfield Council		Weir Phillips Heritage and Planning		22 February 2024
7	Preliminary Acid Sulfate Soil Assessment		JK Environments		12 February 2024
8	BASIX Certificate No. 1739172M		Bonnefin Consulting Pty Ltd		8 March 2024

Jurisdictional matters

6. The site is zoned R3 Medium Density Residential pursuant to the Manly Local Environmental Plan 2013 (LEP 2013). The proposal is permissible with consent. The objectives of the R3 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.

• To encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination.

7. The height of buildings development standard for the site is 11m pursuant to cl 4.3 of LEP 2013. The proposal is generally compliant with the maximum height, however, the lift overrun exceeds the maximum height by approximately 1m. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2013, are:

(a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality,

(b) to control the bulk and scale of buildings,

(c) to minimise disruption to the following—

(i) views to nearby residential development from public spaces (including the harbour and foreshores),

(ii) views from nearby residential development to public spaces (including the harbour and foreshores),

(iii) views between public spaces (including the harbour and foreshores),

(d) to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings,

(e) to ensure the height and bulk of any proposed building or structure in a recreation or conservation zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses.

8. The floor space ratio (FSR) development standard for the site is 0.75:1 pursuant to cl 4.4 of LEP 2013. The proposal has a FSR of 1.42:1. The objectives of the FSR development standard, at cl 4.4(1) of LEP 2013, are:

(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,

(b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,

(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,

(d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,

(e) to provide for the viability of Zone E1 and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres.

9. The proposal includes a retail floor area of 65m², which complies with cl 5.4(7) of LEP 2013 requiring a retail floor area not to exceed 80m² if the development is for the purpose of a neighbourhood shop.

10. The site is located within the Pittwater Road Conservation Area under Sch 5 to LEP 2013. The consent authority, or the Court exercising the function of the consent authority, must consider the impact of the proposal on the heritage significance of the heritage conservation area, pursuant to cl 5.10(4) of LEP 2013. I accept the conclusion of the heritage assessment prepared by Weir Phillips Heritage and Planning and dated 22 February 2024 that the demolition of the existing building will not have a detrimental impact on the identified heritage significance of the heritage conservation area.

11. Clause 5.21 of LEP 2013 Flood Planning applies to the site, as it is identified as being a “medium risk precinct” on the Flood Hazard Map. The matters under clause 5.21(3) of LEP 2013 are a mandatory consideration. I am satisfied that the Floodplain Management Report prepared by van der Meer Consulting and dated 15 December 2022 satisfactorily addresses the mandatory considerations. The report confirms that there will be minimal impact on flooding events by the proposed development; the site has no significant evacuation difficulties; and it provides recommendations on building components and methods to mitigate any flooding risks to the proposed development.

12. The site is mapped as Class 4 Acid Sulfate Soils. Clause 6.1 Acid Sulfate Soils applies. The proposal includes a basement of around 3.5m in depth below the natural ground surface. Clause 6.1(3) of LEP 2013 provides that development consent must not be granted unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the ASS Manual and has been provided to the consent authority. A Preliminary Acid Sulfate Soil Assessment has been prepared by JK Environments dated 12 February 2024. The Preliminary Acid Sulfate Soil (ASS) Assessment has been prepared with reference to the AAS Manual and concludes there is a negligible risk from disturbing acid sulfate materials to a depth of approximately 1.85 metres below the natural ground surface. Due to access constraints, the sampling depths did not extend to the anticipated excavated depth for the proposed development. Based on risk maps, there is a low probability of AAS occurrence beyond a depth of 3 metres. Nonetheless, an AAS Management Plan has been included in the Preliminary Acid Sulfate Soil Assessment to manage any potential risks post demolition of the existing building.

13. Clause 6.2 of LEP 2013 Earthworks applies to the site. I am satisfied that the matters arising under cl 6.2(3) have been addressed. The extent of the earthworks proposed by the development relates to the excavation for the basement level. The proposed development was designed to consider the results and recommendations of the Geotechnical Assessment prepared by JK Geotechnics dated 25 November 2022. The proposed development will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area. The proposed excavation is consistent with the site’s context and is in accordance with Council’s current and proposed planning strategies. It is considered unlikely that excavation will lead to the disturbance of relics as the site is not known to be situated within an area of archaeological significance, and the earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the site.

14. Clause 6.4 of LEP 2013 Stormwater Management applies to the site. The proposal is accompanied by detailed stormwater management plans prepared by Van der Meer Consulting and dated 15 December 2022. I am satisfied that the matters under cl 6.4(3) have been addressed.

15. Clause 6.9 of LEP 2013 Foreshore Scenic Protection Area applies to the site. A consideration of the matters under cl 6.9(3) is set out in the Statement of Environmental Effects (SEE) prepared by Boston Blyth Fleming Town Planners. I accept the conclusions of the SEE that the proposed development will not have an adverse impact on the visual amenity of the foreshore; has been designed with appropriate regard to the context and amenity of the site and will not result in any conflict between land-based and water-based coastal activities.

16. Clause 6.12 of LEP 2013 Essential Services applies to the site. The site is in an established and developed area. The site is currently connected to all essential services, including water, electricity, sewer and stormwater drainage. Conditions 2 and 63 of the Agreed Conditions require compliance with Ausgrid’s conditions (provided pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, and the construction certificate plans must be approved by Sydney Water. The proposed development includes a new driveway off Raglan Street to provide suitable vehicular access and the application is accompanied by a Traffic and Parking Assessment Report prepared by Varga Traffic Planning Pty Ltd dated 19 December 2022 which confirms the design of the driveway is acceptable. I am satisfied that the essential services will be available to the development when required.

17. The terms of cl 6.1(a)-(g) of LEP 2013 have been considered by the Council and I accept that the proposal will have a neutral effect on the quality of water entering Sydney Harbour, and the impact on waterflow to the natural waterbody will be minimised. The Council submitted that the proposal will not have direct, indirect of cumulative impact of the terrestrial, aquatic or migratory animals or vegetation. I accept that periodic flooding will not result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody or have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems. The proposal will not impact on recreational uses in the Sydney Harbour Catchment and will maintain public access to an around the foreshore without adverse impacts on the Sydney Harbour Catchment.

18. I accept the Council’s submission that the proposal is suitable for the site, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 because the site has historically been used exclusively for residential use.

19. Pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, the site is situated within the Sydney Harbour Catchment, a regulated catchment as defined under the SEPP.

20. Chapter 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposal because the proposal includes residential apartments of at least 3 storeys (s 144 and s 8(2A) of Sch 7A to SEPP (Housing)). The proposal is accompanied by a revised design verification statement which refers to SEPP Housing.

Contravention of the height of buildings development standard

21. The height of buildings development standard for the site is 11m. The lift overrun exceeds the maximum height by approximately 1m.

22. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Boston Blyth Fleming Town Planners and dated 28 February 2024.

23. Clause 4.6(4) of LEP 2013 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

24. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2013 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

25. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

26. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

27. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

1. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

2. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

3. the development standard has been abandoned by the council;

4. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

28. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

29. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the breach is minor and inconsequential in terms of streetscape and residential amenity outcomes. The proposal is consistent with the three-storey street wall and the lift overrun is not visible when the façade is viewed from the street.

30. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

31. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

32. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

33. I am satisfied that the proposal is in the public interest because it is consistent with the height of buildings development standard objectives and the zone objectives, for the reasons set out in the request.

Contravention of the FSR development standard

34. The existing building on the site has a FSR of 1.71:1. The FSR development standard is 0.75:1. The proposal has a FSR of 1.42:1.

35. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Boston Blyth Fleming Town Planners and dated 28 February 2024.

The applicant’s written request to contravene the height of buildings development standard

36. The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the proposal is consistent with the urban form of the context of Raglan Street, where the buildings create a street wall, built to the side boundaries. The proposal is responsive to the massing and form of surrounding development and a high level of internal amenity is achieved.

37. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

38. I am satisfied that the proposal is in the public interest because it is consistent with the FSR development standard objectives and the zone objectives, for the reasons set out in the request.

Conclusion

39. I have considered the submissions made by the Council in the Jurisdictional Note filed with the Court on 18 March 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

40. The orders of the Court are:

1. The applicant is to pay the respondent’s costs in the sum of $4,000, under s.8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of the date of these Orders.

2. The appeal is upheld.

3. Development Application No. 2022/2256, as amended, for demolition works and construction of a mixed use development with basement car parking, on land legally described as Lot 100 in DP1009880 and known as 22 Raglan Street, Manly, NSW, 2095, is determined by the grant of development consent, subject to the conditions at Annexure A.

Susan O’Neill

Commissioner of the Court

**********

Annexure A

Decision last updated: 28 March 2024