Penmore Properties No. 2 Pty Limited v Penrith City Council

[2019] NSWLEC 1265

Land and Environment Court

New South Wales

Medium Neutral Citation:	Penmore Properties No. 2 Pty Limited v Penrith City Council [2019] NSWLEC 1265
Hearing dates:	11 June 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend the development application to rely upon the amended plans referred to in condition 1 of the conditions of consent annexed hereto at Annexure ‘A’. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans in the sum of $15,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3)   By consent, the appeal is upheld. (4)   Modification application No. 16/0589.03 to modify development consent No. 16/0589, is approved subject to the conditions of consent annexed hereto at Annexure ‘A’. (5)   The exhibits are returned, except Exhibits A, B, C, 2 and 3.
Catchwords:	MODIFICATION APPLICATION – consent orders –residential flat building – waste collection – amended plans – resident objector
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environment Plan 2010
Texts Cited:	Penrith Development Control Plan 2014
Category:	Principal judgment
Parties:	Penmore Properties No. 2 Pty Limited (Applicant) Penrith City Council (Respondent)
Representation:	Solicitors: K Huxley, McCabe Lawyers (Applicant) C Drury, Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/144360
Publication restriction:	No

Judgment

1. COMMISSIONER: Penmore Properties No. 2 Pty Limited (the Applicant) has appealed the decision of the Penrith City Council (the Respondent), to refuse its modification application to delete Condition 1A of Schedule 1 of its consent under DA16/0589 for construction of a residential flat building at 72-74 Lethbridge Street and 35 Doonmore Street, Penrith, (which together form the Subject Site).

2. The appeal had been the subject of a conciliation conference on 7 November 2018 under s 34 of the Land and Environment Court Act 1979, which had not resolved contentions between the Parties, and so was terminated.

3. The appeal is made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Parties have advised that the contentions between them had been resolved and they now come before the Court seeking orders by consent.

4. At the commencement of the hearing, an oral submission was taken from Ms Julie Rockliff, the owner of, and a resident at, a lot adjoining the Subject Site,

5. Ms Rockliff said that, based on the Applicant’s amended plans, she no longer objected to the grant of consent to the Applicant’s modification application, but asked that any consent include conditions that would:

1. provide for a hoarding at her boundary to the Subject Site that would assure her visual privacy and her amenity in using her rear yard;

2. restrict the movement of the boom arm of any crane placed on the Subject Site from operating above her property.

Application for consent orders

6. The Court’s Practice Note – Class 1 Development Appeals (paragraph 99), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application:

“99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

7. During the hearing, the Respondent advised that it had notified all objectors that, following the termination of the s34 conciliation conference on 11 November 2018, this appeal had been listed for a consent orders hearing on 11 June 2019, and that the hearing would commence at 10am.

8. The Respondent said that one additional objector had come forward late on Thursday 6 June 2019, but that efforts to make further contact this objector by phone and e-mail prior to the hearing had not been successful.

9. As noted above (see [4]), the objector located most proximate to the Subject Site, Ms Julie Rockliff, had been advised of the hearing and attended the Court to make a submission in which she confirmed that she had been briefed on the Applicant’s amended plans by representatives of the Respondent.

10. The Respondent confirmed that Ms Rockliff had been advised that the Parties, based on the advice of their experts, had resolved all contentions in the appeal to their mutual satisfaction, and I am satisfied that the Respondent made all reasonable efforts to contact objectors to the Applicant’s modification application.

11. Before the Court can grant consent, the Respondent must also demonstrate that the relevant statutory provisions applicable to the proposed development have been met, and that the concerns of objectors have been properly taken into account.

12. These matters related to the resolution of contentions concerning the management and collection of waste from the proposed development, and some amendments to the design of the proposed development that flowed from resolution of this issue, including certain construction related issues raised by Ms Rockliff in her submission at the commencement of the hearing.

13. The Parties addressed these matters during the hearing.

Statutory framework

Environmental Planning and Assessment Act 1979

14. The objects of the EP&A Act are:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment

15. Section 4.15(1) of the EP&A Act provides:

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

16. This appeal comes to the Court under s 8.9 of the EP&A Act, concerning appeals by an applicant for modifications of development consent, and which provides:

An applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

17. The appeal involves the Court exercising the powers under s 4.55(2) of the EP&A Act, which provides

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

Penrith Local Environmental Plan 2010

18. Under Penrith Local Environmental Plan 2010 (PLEP), the Subject Site is zoned R4 High Density Residential. The objectives of this zone are to:

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

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

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

• ensure that a high level of residential amenity is achieved and maintained.

• encourage the provision of affordable housing.

• ensure that development reflects the desired future character and dwelling densities of the area.

19. A residential flat building, such as that proposed by the Applicant, as modified under the application that is the Subject of this appeal, is a permitted use in the R4 zone.

20. The height of buildings on the Subject Site is controlled under cl 4.3. of PLEP which has the following objectives:

(a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas, including parks, streets and lanes,

(c) to minimise the adverse impact of development on heritage items, heritage conservation areas and areas of scenic or visual importance,

(d) to nominate heights that will provide a high quality urban form for all buildings and a transition in built form and land use intensity.

21. Clause 4.3 of PLEP also provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

22. The Height of Buildings Map referred to in cl 4.3 of PLEP sets an 18m height development standard on the Subject Site. The proposed development exceeds this height development standard by up to 2.8m.

23. However, in granting consent to DA16/0589, the Respondent had considered, and upheld a request under cl 4.6 of PLEP to vary this development standard. The Parties agreed at the hearing that the Applicant’s modification application did not seek to vary the approved height of the proposed development and no further consideration of this breach is triggered by this appeal.

Penrith Development Control Plan 2014

24. Penrith Development Control Plan 2014 (PDCP) describes its purpose as:

a) To provide guidance to people wishing to carry out development within the City of Penrith;

b) To promote development which is consistent with Council’s vision for the City of Penrith, namely, one of a sustainable and prosperous region with a harmony of urban and rural qualities with a strong commitment to environmental protection and enhancement.

c) To ensure development incorporates the principles of sustainable development through the delivery of balanced social, economic and environmental outcomes.

d) To encourage development which ‘lifts the bar’ in terms of delivering sustainable and healthy communities in the long term.

e) To foster development that responds appropriately to the natural and built environment, in particular, vegetation, biodiversity corridors, significant waterways, riparian land, significant buildings and gardens, and scenic landscapes and views.

f) To provide for an urban environment that is active, attractive and safe for residents and visitors.

g) To ensure the quality of development in the City of Penrith is of a high standard.

25. Part C5 of PDCP provides guidance concerning waste management within the City of Penrith, and Part 5.2.2.4 provides detailed guidance with respect to waste management within residential flat buildings.

Contentions

26. The principle isasue in contention in this appeal related to the Applicant’s proposed deletion of Deferred Condition 1A within Schedule 1 to the consent issued to the Applicant by Penrith City Council for its DA16/0589, and which provided as follows:

“Prior to this consent becoming operational, amended plans are required to be submitted and approved by Penrith City Council with the provision of an on-site waste collection arrangement.

The amended plans are required to be prepared in accordance with the relevant requirements under Chapter C5, Subsection 3 of Penrith Development Control Plan 2014.

Adequate and safe access must be provided for Council’s standard waste collection vehicles and waste collection staff.

Amended architectural and landscape plans are also required to be submitted and approved by Council that responds to necessary amendments to accommodate the required on site waste collection arrangement.

The on-site waste collection arrangement (if pursued in the form of an on-site loading bay) must provide the following infrastructure:

• large enough to accommodate a 10.5 m every Richard waste vehicle

• 2 m unobstructed loading zone behind the vehicle to allow for loading of 240 L and 1100 L bins

• internal high clearance of 4.5 m outline in Australian standard

• swept path showing all movements in and out of the loading bay provide a 0.6 m clearance.”

27. At the commencement of the appeal, the Applicant sought leave to rely on amended plans, and leave was granted without objection.

28. These amended plans included:

1. the provision of an on-site waste collection facility, including:

1. a turntable in the level one basement to facilitate the forward entry and forward exit of a waste collection vehicle with a maximum length of 10.5m;

2. modified waste storage areas for bin storage and bulky waste storage;

2. the deletion of two units on the ground floor of the proposed development previously identified as units B001 and B002;

3. the relocation of electrical substations for the proposed development from a site fronting Doonmore Street, to a location on the north-west of the proposed development fronting Lethbridge Street.

29. In coming before the Court to seek orders by consent, the Parties advised, and I agree, that the jurisdiction prerequisites in s 4.55(2) of the EP&A Act have been satisfied in that:

1. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted;

2. the modification application was notified between 5 and 19 March 2019 in accordance with the provisions of PDCP, and the two submissions made in relation to the proposed modification have been considered;

3. an amended application was notified between 20 May and 3 June 2019 in accordance with the provisions of PDCP, and for submissions made in relation to the proposed modification application have been considered.

30. The Parties submitted that it was their agreed position that:

1. the Applicant’s modification application had been properly made;

2. the Parties’ proposed amended conditions of consent included conditions which specifically addressed the concerns raised by the objector, Ms Rockliff (see above at [4]), in relation to the provision of hoardings at the boundary of the Subject Site and her property, and limitations on the movement of the boom arm of any crane on the Subject Site over her property.

3. on the basis of the Applicant’s amended plans, and having considered the matters in s 4.15(1) of the EP&A Act, all contentions in this appeal had been resolved, or are resolved by the proposed modified conditions of consent.

Conclusion

31. I am satisfied that:

1. the Applicant’s modification application had been properly made;

2. the Applicant’s written request made under cl 4.6 of PLEP to vary the height control in cl 4.3 of PLEP does not require amendment;

3. all contentions in this appeal had been resolved, or are resolved by the modified conditions of consent proposed by the Parties;

4. the Court’s requirements concerning the notification of applications for final orders by consent have been adequately addressed;

5. approval of the Applicant’s modification application is in the public interest.

32. Consequently, I conclude that the Applicant’s modification application for the proposed development should be approved, subject to conditions.

Orders

33. The orders of the Court are:

1. The Applicant is granted leave to amend the development application to rely upon the amended plans referred to in condition 1 of the conditions of consent annexed hereto at Annexure ‘A’.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans in the sum of $15,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. By consent, the appeal is upheld.

4. Modification application No. 16/0589.03 to modify development consent No. 16/0589, is approved subject to the conditions of consent annexed hereto at Annexure ‘A’.

5. The exhibits are returned, except Exhibits A, B, C, 2 and 3.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (260 KB)

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Decision last updated: 14 June 2019