Pedwood Pty Ltd v Sutherland Shire Council

[2021] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pedwood Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1559

Hearing dates:

Conciliation conference on 2 and 29 July, 13 and 20 August, and 3 and 7 September 2021

Date of orders:

27 September 2021

Decision date:

27 September 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The request pursuant to clause 4.6 of the Sutherland Shire Local Environment Plan 2015 to vary the development standard for height of buildings contained in clause 4.3 of the Sutherland Shire Local Environment Plan 2015 prepared by Planning Ingenuity dated 2 July 2021 is upheld.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent as agreed or assessed as a result of the Applicant being granted leave to rely upon the Amended Development Application.

(3) The appeal is upheld.

(4) Development Application No DA18/1120 for the demolition of existing 3 storey building and erection of a 6 storey mixed-use development including 2 levels of basement car parking, ground level commercial space and commercial car parking, 24 residential units over 5 levels and a roof terrace at 20-26 President Avenue, Caringbah is approved, subject to the conditions contained in the annexure marked "B".

Catchwords:

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

Legislation Cited:

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, ss 34, 39

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

State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.6, 6.2, 6.4, 6.15, 6.16, 6.17

Cases Cited:

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

Texts Cited:

Apartment Design Guide

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Pedwood Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

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

Solicitors:
Giles Payne & Co (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2021/98920

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 refusal by the Sutherland Shire Local Planning Panel on behalf of Sutherland Shire Council (the Respondent) of Development Application No DA18/1120 for the demolition of an existing 3 storey building and erection of a 6 storey mixed-use development. The new building proposes 2 levels of basement car parking and 24 residential units over 5 levels including a roof terrace at 20-26 President Avenue, Caringbah (the site).

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 2 July 2021, and at which I presided.

3. The conciliation conference was held on MS Teams, at which the parties reached in-principle agreement on the matters in contention, subject to the resolution of a number of matters which the parties’ advised me were capable of resolution. I adjourned the conciliation conference to allow the parties to continue to resolve those matters.

4. I granted further adjournments on 29 July and 13 August 2021 to permit the finalising of amended plans, and adjourned the conciliation on 20 August 2021 for further communication with certain parties that I deemed necessary, and facilitate the lodgement of the amended application on the NSW Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act.

5. I further adjourned the conciliation conference on 3 September 2021 to facilitate the finalising of the agreement between the parties, and directed that the agreement and other documents be filed with the Court no later than 7 September 2021.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 7 September 2021.

7. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

8. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

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

10. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

• Sutherland Shire Local Environmental Plan 2015 (SSLEP)

• State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)

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

• State Environmental Planning Policy No 55—Remediation of Land

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

11. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow.

12. The site is located within land zoned B3 Commercial Core in the SSLEP, that permits shop top housing with consent where it is consistent the following objectives for development in the zone:

•  To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

•  To encourage appropriate employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To strengthen the viability of existing commercial centres through increased economic activity, employment and resident population.

•  To create an attractive, vibrant and safe public domain with a high standard of urban design and public amenity.

•  To enhance commercial centres by encouraging incidental public domain areas that have a community focus and facilitate interaction, outdoor eating or landscaping.

•  To provide for pedestrian-friendly and safe shopping designed to cater for the needs of all ages and abilities.

The height standard is exceeded

13. The proposed development exceeds the height of buildings standard of 20m at cl 4.3(2) of the SSLEP, and the Applicant relies upon a written request prepared by Planning Ingenuity dated 2 July 2021 (the written request).

14. The exceedance of the height standard is identified as follows:

• 2.784m measured to the top of the lift overrun

• 1.735m measured to the top of the structure forming the roof pergola, fire stairs and WC.

15. In addressing cl 4.6(3)(a) of the SSLEP, the written request relies on what is commonly known as the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 and states that compliance is unreasonable or unnecessary because the objectives of the height standard are achieved, notwithstanding non-compliance with the standard.

16. The relevant objectives at cl 4.3 of the SSLEP are:

(a)  to ensure that the scale of buildings—

(i)  is compatible with adjoining development, and

(ii)  is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

(iii)  complements any natural landscape setting of the buildings,

(b)  to allow reasonable daylight access to all buildings and the public domain,

(c)  to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

…

17. According to the written request, the objectives are achieved for reasons that may be summarised as follows:

1. A visual impact assessment concludes that as the exceedance is located in the centre of the proposed development in plan, and because of the particular arrangement of streets in the immediate vicinity of the site, the exceedance will not be substantially visible within 150m of the site and so is minimised when viewed from the public domain.

2. At the distance from the site the exceedance is likely to be visible, the overall result is not incompatible or inconsistent with the existing and likely future scale and character.

3. But for those aspects identified at [14], the building otherwise complies with the height standard and building setback from President Avenue, is within the maximum permitted floor space ratio, and is consistent with the building envelope in the Sutherland Shire Development Control Plan 2015 (SSDCP).

4. Shadow diagrams demonstrate the exceedance does not significantly impact access to sunlight for surrounding development, including the school to the south of the site.

18. In addressing cl 4.6(3)(b) of the SSLEP, the written request relies on twelve grounds that it considers to be sufficient environmental planning grounds that may be summarised as follows:

• The exceedance is limited to those features providing access to the communal open space at the rooftop, including the lift overrun and pergola which provide amenity with minimal additional overshadowing resulting.

• The exceedance does not prevent redevelopment of the adjoining site, as demonstrated by concept plans prepared by the Applicant.

• The visual bulk resulting from the exceedance is consistent with surrounding development, and is not perceptible from the particular vantage points in the public domain.

• The exceedance contains no habitable floor space, does not result in adverse privacy impacts on neighbouring properties.

19. I accept the grounds on which the written request relies and I am satisfied that the written request has adequately addressed the contravention of the height standard pursuant to cl 4.6(4)(a) of the SSLEP. I am also satisfied that the proposed development is in the public interest because it is consistent with the objectives of the height standard for the reasons set out at [16], and with the objectives of development in the B3 zone for the reasons that follow:

1. Ground floor retail tenancies and residential units provide a mix of uses that serve the needs of the community, including opportunities for employment in commercial enterprise that is within walking distance of Caringbah train station.

2. This mix of uses, and number of residents to be accommodated in the proposed development strengthens the viability of the local area in terms of its economy, employment and resident population, and contributes to the public domain through a high standard of urban design and public amenity.

3. Provision for car parking adopts the minimum parking rate and so encourages residents to utilise travel options other than private vehicle.

4. Street-facing awning structures and retail tenancies encourage safe, pedestrian-friendly safe shopping in an enhanced public domain.

20. Clause 4.6(4)(b) of the SSLEP requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.

21. The Secretary has given written notice dated 5 May 2020, attached to the Planning Circular PS 20-002 that the Secretary’s concurrence may be assumed for exceptions to development standards, subject to certain conditions contained in the notice.

22. That said, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.

23. I have considered whether the contravention of the height standard raises any matter of significance for State or regional environmental planning, and whether there is a public benefit of maintaining the development standard. I conclude that no matter of significance arises, and I consider there to be a public benefit served by upholding the written request for the reasons set out above.

The SSLEP is further considered

24. The proposed development requires excavation of the land and cl 6.2(3) of the SSLEP requires consideration to be given to the potential impacts of those earthworks. I have considered the Geotechnical report prepared by EI Australia dated 20 April 2018 and Condition 18 of the agreed conditions of consent, which address those matters.

25. On the basis of the Stormwater plans prepared by ZAIT Engineering Solutions Pty Ltd, dated May 2019 and Condition 12 and 13 of the agreed conditions of consent, I am satisfied that adequate provision has been made for stormwater retention and runoff, and that the roof top landscaping seeks to maximise the permeable surfaces within the constraints of the site in accordance with cl 6.4 of the SSLEP.

26. Clause 6.15 of the SSLEP deals with energy efficiency and sustainable building techniques. I consider those matters at subcl (2) to be adequately addressed firstly by the BASIX Certificate (Cert No. 934708M_03), prepared by EPA dated 12 August 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation, and secondly, by the design statement prepared by Mr John Baker (Arch Reg No 3552) dated 18 August 2021 in accordance with cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development.

27. The design statement also assists in addressing those urban design matters at cll 6.16 and 6.17 of the SSLEP, as do the architectural plans that include view analysis.

State Environmental Planning Policy (Infrastructure) 2007

28. As the relevant concurrence authority, the development application was referred to Roads and Maritime Services (RMS) in accordance with cl 104 of the Infrastructure SEPP, and relevant terms are incorporated in the agreed conditions of consent at Condition 2.

29. As the site has a frontage to President Avenue, which is identified as a classified road, cll 101 and 102 of the Infrastructure SEPP apply.

30. On the basis of the Assessment of Traffic and Parking Implications prepared by TTPA dated May 2019, and the Noise Impact Assessment report prepared by Acoustic Logic dated February 2018, I am satisfied that the requirements of cll 101 and 102 are achieved.

State Environmental Planning Policy No 55—Remediation of Land

31. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the assessment outlined on p 12 of the Statement of Environmental Effects, I am satisfied that the site is not contaminated.

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

32. On the basis of the design statement cited at [26], I am satisfied that the proposed development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide.

Conclusion

33. 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.

34. 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

35. The Court notes:

1. That the Applicant has amended Development Application No DA18/1120 with the consent of Sutherland Shire Council to incorporate the amended plans and documents referred to in Annexure A.

2. That the Amended Application has been lodged on the NSW planning portal on 2 September 2021.

3. That the Applicant has subsequently filed the amended application with the Court on 3 September 2021.

36. The Court orders that:

1. The request pursuant to clause 4.6 of the Sutherland Shire Local Environment Plan 2015 to vary the development standard for height of buildings contained in clause 4.3 of the Sutherland Shire Local Environment Plan 2015 prepared by Planning Ingenuity dated 2 July 2021 is upheld.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent as agreed or assessed as a result of the Applicant being granted leave to rely upon the Amended Development Application.

3. The appeal is upheld.

4. Development Application No DA18/1120 for the demolition of existing 3 storey building and erection of a 6 storey mixed-use development including 2 levels of basement car parking, ground level commercial space and commercial car parking, 24 residential units over 5 levels and a roof terrace at 20-26 President Avenue, Caringbah is approved, subject to the conditions contained in the annexure marked "B".

……………………

T Horton

Commissioner of the Court

Annexure A (99693, pdf)

Annexure B (730526, pdf)

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Decision last updated: 27 September 2021