Phenix Property Group Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1037

Land and Environment Court

New South Wales

Medium Neutral Citation:

Phenix Property Group Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1037

Hearing dates:

Conciliation conference on 19 January 2024

Date of orders:

06 February 2024

Decision date:

06 February 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6,000 within 28 days.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 496/2022, as amended during Land and Environment Court Proceedings No. 2023/50343, for alterations and additions to the approved mixed-use development, including an increase in floor levels, adjustments to common circulation and adjustments to the ensuite area at 388-394 Canterbury Road, Canterbury and 1 Allen Street, Canterbury, being Lot 1 in DP 124364, Lot 1 in DP 325386, Lots B and C in DP 342255 and Lots A and B in DP 384563, subject to conditions annexed hereto and marked ‘Annexure A’.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – development application seeks consent for alterations and additions to the approved mixed-use development – conciliation conference – agreement between the parties – orders made.

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 4.3, 4.6, 6.2, 6.4

Canterbury Local Environmental Plan 2023, cl 1.8A

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, cll 28, 30

Texts Cited:

Canterbury Development Control Plan 2012

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Australian Building Codes Board, National Construction Code 2022, 2022

Category:

Principal judgment

Parties:

Phenix Property Group Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
S Siv (Solicitor) (Applicant)
M Bonnano (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/50343

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of Development Application No. 496/2022. As lodged, the development application seeks consent for alterations and additions to the approved mixed-use development (DA-335-2014) including an increase in floor levels, adjustments to common circulation and adjustments to ensuite area at 388-394 Canterbury Road, Canterbury and 1 Allen Street, Canterbury. The site of the development is identified as Lot 1 in DP 124364, Lot 1 in DP 325386, Lots B & C in DP 342255 and Lots A & B in DP 384563 (“the Site”).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 between the parties, which was held on 6 July 2023. The conciliation conference was adjourned to allow the parties to continue discussions.

3. On 6 October 2023, the development application was amended by Notice of Motion. The parties have continued without prejudice discussions and have reached an agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was lodged with the consent of the owners of the land.

2. The development application was notified and advertised for a period of 21 days from 10 until 30 August 2022, in accordance with the requirements of the Canterbury Development Control Plan 2012 (DCP 2012). One submission was received. I am satisfied that the submission has been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not grant consent to a development unless it has considered whether the Site is contaminated, and if the land is contaminated, is satisfied that the site is suitable (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out.

4. The proposed development application does not, in and of itself, seek consent to erect a residential flat building. It seeks consent for minor alterations and additions to an approved and physically commenced residential flat building development. As noted at [1], the site has an existing development consent. In assessing and approving that development application, the Respondent formed the view that the Site was suitable for the purpose of a residential flat building development. The Statement of Environmental Effects which forms part of this development application summarises the history of the site. The parties agree, and I accept, that the site is suitable for the purpose for which the development application seeks consent.

5. The Development Application was lodged under the provisions of the State Environmental Planning Policy Building Sustainability Index: BASIX 2004 (BASIX SEPP). On 1 October 2023, the BASIX SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). The Development Application is captured by the savings and transitional provision set out in s 4.2(1)(a) of the Sustainable Buildings SEPP, so remains subject to the provisions of the BASIX SEPP.

6. In compliance with the relevant requirements under the BASIX SEPP, the Applicant has provided an amended BASIX Certificate number 559165M_07 prepared by Building & Energy Consultants Australia, dated 19 October 2023, to reflect the proposed development.

7. The Site has a frontage to a classified road, Canterbury Road. Accordingly, s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies. As such, consent must not be granted to development with a frontage to a classified road unless the requirements of s 2.119(2) of SEPP TI are satisfied, relating to vehicular safety. Vehicular access to the Site is provided by Allen Street, a non-classified road and I am satisfied that this is a practical and safe option. I am further satisfied that the safety, efficiency and ongoing operation of the classified road will not be detrimentally affected by the proposed development. Further, given access is provided by an alternative local road, I can be satisfied that the development has been designed to ensure the safety, efficiency and ongoing operation of Canterbury Road. Finally, the development application for the existing consent was accompanied by an Acoustic Report prepared by Acoustic Noise and Vibration Solutions. That report concludes that the proposed development is capable of achieving the noise attenuation criteria. The current development application is consistent with the findings of that report, and I find that I am able to be satisfied that appropriate measures will be taken to ensure that the noise levels nominated in s 2.120 of SEPP TI are met.

8. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65) applies to the proposed development which seeks consent for residential apartments. Clause 28(2)(a) of SEPP 65 requires the consent authority to take into consideration any advice obtained from the design review panel. This clause does not apply to the proposed development as at the time the development application was lodged, no panel was constituted. As required by cl 28(2)(b) of SEPP 65, with the assistance of the filed Design Verification Statement, I have evaluated the development application against the design quality principles. Further, with the assistance of the statement I can be satisfied that adequate regard has also been given to the objectives of the Apartment Design Guide (ADG) as required by cl 30(2)(b) of SEPP 65.

9. Despite the gazettal of the Canterbury Bankstown Local Environmental Plan 2023 (LEP 2023), the Canterbury Local Environmental Plan 2012 (LEP 2012) continues to apply pursuant to the savings provision at cl 1.8A of LEP 2023. Pursuant to LEP 2012, the site is zoned B5 Business Development zone. The proposed development (residential flat building and commercial/retail premises) is permissible with consent in the zone.

10. Pursuant to cl 4.3 “Height of Buildings”, the site has a maximum building height of 18m. The development application proposes a minor increase in the overall height of building and an increase in the extent of the height breach. The Applicant has prepared a written request seeking to vary the height standard. The parties agree, and I accept, that the tests at cl 4.6 of LEP 2012 are met as follows:

1. The additional proposed development height across the building ranges from 80mm to 2.45m (pergola) over the maximum building height.

2. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because:

1. The Respondent already consented to the residential flat building in breach of the height of building control and, in doing so, upheld a clause 4.6 request accepting that strict compliance was unnecessary and unreasonable;

2. The minor increase in the height non-compliance is a direct result of the Applicant’s legal obligation to amend the design to comply with its retrospective National Construction Code (NCC) obligations;

3. Aside from creating a legal obligation, the NCC requirements are essential for the safety considerations of future residents of the approved residential flat building, a self-evident and important public interest consideration;

4. the proposal has been designed in response to its locality, so that despite the numerical height breach, it will visually align with the business development character of the area;

5. the siting and nature of the non-compliant elements relate to providing high quality and high amenity communal open space for future residents at the roof top level;

6. the extent of additional shadow arising from the non-compliant elements is minimal; and

7. the areas that exceed the height standard are inconsequential when viewed from the public domain and do not contribute to the scale and density of the building in terms of its visual perception to contributing bulk.

3. There are sufficient environmental planning grounds to justify contravening the development standard because:

1. the primary driver for the non-compliance are the NCC obligations. Consequential installation of fire sprinklers requires the increase to the floor-to-floor height for each level and overall height of the proposed development;

2. compliance with NCC obligations is essential in relation to ensuring the protection and safety of future occupants;

3. the proposal is consistent with the objectives of the development standard and objectives of the zone; and

4. the shade structure which exceeds the height standard does not comprise any gross floor area, rather, it ensures weather protection for the rooftop communal open space. Without this element, the space would be less usable for residents, would provide less amenity and would not achieve compliance with the relevant design criteria in the ADG.

11. On the preceding basis, I find that the states of satisfaction required by cl 4.6 of LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

12. Clause 6.2 “Earthworks” of LEP 2012 does not apply as the development application does not seek the provision of any additional earthworks outside the scope of works approved on the Site.

13. Clause 6.4 “Stormwater Management” of LEP 2012 does not apply as the development application does not seek the provision of any additional earthworks outside the scope of works approved on the Site.

14. DCP 2012 applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2012. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

1. Canterbury-Bankstown Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. 496/2022 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Site/Roof Plan	A-0100	C	23 November 2023	Loucas Architects
Basement Plan 02	A-1000	C	23 November 2023	Loucas Architects
Basement Plan 01	A-1010	C	23 November 2023	Loucas Architects
Ground Floor Plan	A-1020	C	23 November 2023	Loucas Architects
First Floor Plan	A-1030	E	23 November 2023	Loucas Architects
Second Floor Plan	A-1040	E	23 November 2023	Loucas Architects
Third Floor Plan	A-1050	E	23 November 2023	Loucas Architects
Fourth Floor Plan	A-1060	E	23 November 2023	Loucas Architects
Fifth Floor Plan	A-1070	E	23 November 2023	Loucas Architects
Site/Roof Plan	A-1080	D	23 November 2023	Loucas Architects
Site/Roof With Survey Overlay	A-1090	C	23 November 2023	Loucas Architects
Elevations	A-1100	D	23 November 2023	Loucas Architects
Elevations	A-1110	D	23 November 2023	Loucas Architects
Elevations	A-1120	D	23 November 2023	Loucas Architects
Elevations	A-1130	D	23 November 2023	Loucas Architects
Streetscape Elevation	A-1140	D	23 November 2023	Loucas Architects
Section A-A	A-1200	D	23 November 2023	Loucas Architects
Typical Sections	A-1210	D	23 November 2023	Loucas Architects
Shadows	A-1300	D	23 November 2023	Loucas Architects
Shadows	A-1310	D	23 November 2023	Loucas Architects
Shadows	A-1320	D	23 November 2023	Loucas Architects
Shadows	A-1330	D	23 November 2023	Loucas Architects
Shadows	A-1340	D	23 November 2023	Loucas Architects
Shadows	A-1350	D	23 November 2023	Loucas Architects
Shadows	A-1360	D	23 November 2023	Loucas Architects
Shadows	A-1370	D	23 November 2023	Loucas Architects
Shadows	A-1380	D	23 November 2023	Loucas Architects
Shadows	A-1390	D	23 November 2023	Loucas Architects
3D Height Diagram	A-1400	F	23 November 2023	Loucas Architects
Visual Identification of Breach	A-1410	D	23 November 2023	Loucas Architects
Visual Identification of Breach	A-1420	D	23 November 2023	Loucas Architects
Visual Identification of Breach	A-1430	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1440	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1445	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1450	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1455	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1460	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1465	D	23 November 2023	Loucas Architects
Adjoining Elevation Shadows	A-1470	D	23 November 2023	Loucas Architects
Reports and Certificates
Amended Clause 4.6 Variation Request prepared by BMA Urban dated 22 November 2023
State Environmental Planning Policy No. 65 Design Quality of Residential Apartment Development prepared by Loucas Architects dated 6 October 2023
BASIX Certificate prepared Building & Energy Consultants Australia dated 19 October 2023

8. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6,000 within 28 days.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 496/2022, as amended during Land and Environment Court Proceedings No. 2023/50343, for alterations and additions to the approved mixed-use development, including an increase in floor levels, adjustments to common circulation and adjustments to the ensuite area at 388-394 Canterbury Road, Canterbury and 1 Allen Street, Canterbury being Lot 1 in DP 124364, Lot 1 in DP 325386, Lots B and C in DP 342255 and Lots A and B in DP 384563, subject to conditions annexed hereto and marked ‘Annexure A’.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 06 February 2024