Prince Building Pty Ltd v Cumberland Council

[2022] NSWLEC 1707

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prince Building Pty Ltd v Cumberland Council [2022] NSWLEC 1707

Hearing dates:

Conciliation conference held 31 October and 23 November 2022, final agreement filed 28 November 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA2020/0385 and rely upon amended plans and documents referred to in condition 2 at Annexure A.

(2) The Applicant’s written request, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 (CLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CLEP, is upheld.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA2020/0385 (as amended) for the demolition of existing structures and construction of a 6 to 8 storey mixed use building comprising office premises and a 132 room hotel with ancillary amenities including a café/bar, restaurant, gymnasium, wellness centre, conference room and rooftop pool, over basement car parking at 204-210 Parramatta Road, Auburn, subject to the conditions contained at Annexure A.

Catchwords:

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

Legislation Cited:

Cumberland Local Environmental Plan 2021, cll 4.3, 4.6, 5.1, 5.2, 5.3, 5.6, 5.10, 6.1, 6.2, 6.4

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Transport and Infrastructure) 2021

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category:

Principal judgment

Parties:

Prince Building Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
L Finn (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s):

2022/175835

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA2020/0385 (the DA) by Cumberland Council (the Respondent). The DA sought consent for the demolition of existing structures and the construction of a 6 to 8 storey mixed use building, comprising of office premises and a 132 room hotel with ancillary amenities, including a café/bar, restaurant, gymnasium, wellness centre, conference room and rooftop pool, over basement car parking at 204-210 Parramatta Road, Auburn (the site).

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 31 October and 23 November 2022. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view limited in the number of participants before resuming in person and by Microsoft Teams.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the DA has been amended during the conciliation conference so as to resolve the contentions raised by the Respondent, which related to issues of built form and design, solar access to the hotel uses, ventilation, amenity impacts upon neighbouring properties, servicing and loading, vehicular access and parking and stormwater, amongst other contentions.

6. Design amendments made to the architectural plans include changes to resolve the concerns for the basement car parking configuration and aisle widths. An updated plan of management resolves concerns for access and servicing.

7. 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 amended DA.

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

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The original DA was publicly notified for from 5 to 19 August 2020. No submissions were received by the Respondent. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Cumberland Local Environmental Plan 2021 (CLEP) is the relevant local environmental planning instrument. The site is zoned B6 Enterprise Corridor, and the proposed development - characterised as mixed use commercial and hotel development - is permissible with consent.

12. The parties agree, and I am satisfied, that all principal development standards of the CLEP have been met by the amended DA, with the exception of cl 4.3(2A), Height of buildings, which establishes a height of building standard of 27m for the site.

13. In such an instance, cl 4.6(3) of the CLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

14. Clause 4.6(4) of the CLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

15. Additionally, cl 4.6(4)(b) of the CLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

16. As required by cl 4.6 of the CLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard.

17. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard for the following reasons:

1. The amended DA is generally consistent with the 27m height of building standard with the exception of relatively minor portions of the proposed building related to lift overrun and architectural roof feature.

2. The objectives of the CLEP Zone B6 Enterprise Corridor land use zone include promoting businesses along main roads to encourage a mix of compatible uses and providing a range of employment uses (including office uses). I am satisfied the amended DA meets these objectives.

3. The objectives of cl 4.3 of the CLEP include to establish a maximum height of buildings to enable appropriate development density, to ensure that the height of buildings is compatible with the character of the locality, to minimise the visual impact of development and to ensure sufficient solar access and privacy for neighbouring properties. I am satisfied the amended DA meets these objectives.

4. The amended DA resolves the Respondent’s contentions, and in particular the proposal has been amended to resolve vehicle access and parking, and to minimise light spill across site boundaries.

5. The extent of height exceedance is generally not visible from the primary street frontage Parramatta Road. I am satisfied the variation to the height of building development standard brings with it no material environmental impacts, a reduction in privacy or unreasonable overshadowing.

18. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to maximum building height and I uphold the written request.

19. The parties agree, and I am satisfied, that pursuant to cl 5.1 of the CLEP, Relevant acquisition authority, the site is not proposed to be acquired by any authority of the State.

20. The parties agree, and I am satisfied, that pursuant to cl 5.2 of the CLEP, Classification and reclassification of public land, the site is not classified as public land, nor is it proposed to be reclassified at public land.

21. The parties agree, and I am satisfied, that pursuant to cl 5.3 of the CLEP, Development near zone boundaries, the subject site is zoned B6 Enterprise Corridor and is bounded to the southwest by properties zoned R2 Low Density Residential, and Parramatta Road to the northeast zoned SP2 Roads. I am satisfied the DA is not inconsistent with the objectives for development in both the B6 and R2 zones, and that the DA is desirable for reasons of compatible land use planning, infrastructure capacity and the contribution to makes to efficient and timely development of the land.

22. The parties agree, and I am satisfied, that pursuant to cl 5.6 of the CLEP, Architectural roof features, the DA proposes an architectural roof feature which:

1. Comprises a decorative element on the uppermost portion of the building.

2. Is not an advertising structure.

3. Does not include floor space area and is not reasonably capable of modification to include floor space area.

4. Causes minimal overshadowing.

5. Fully integrates any building identification signage or equipment for servicing of the building into the design of the roof feature.

23. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the CLEP, Heritage conservation, the site does not contain a heritage item, is not within a heritage conservation area, does not contain a known Aboriginal object and is not within an Aboriginal place of heritage significance. Further, the site is not mapped on the relevant Heritage Map.

24. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the CLEP, Acid sulfate soils, the site is mapped within a Class 5 Acid Sulfate Soils area. However, the works involve a disturbance of less than 1 tonne of soil and the works are not likely to lower the water table. Additionally, the Applicant has provided a Geotechnical Report, a Preliminary Site Investigation report and a Remediation Action Plan. Accordingly, the parties agree, and I am satisfied, that acid sulfate soils have been appropriately considered.

25. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the CLEP, Earthworks, the Applicant has provided a Geotechnical Report. Agreed conditions of consent reflecting the report’s recommendations are imposed to mitigate against any potential impacts of earthworks.

26. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the CLEP, Essential services, the site is currently serviced for water, electricity, sewage, stormwater and vehicular access, adequate for the proposed DA.

27. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site is potentially contaminated and may require remediation. The Applicant has provided a Preliminary Site Investigation report and a Remediation Action Plan. Conditions of consent are imposed to ensure implementation of the recommendations of these reports. Accordingly, I am satisfied the DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) is an additional relevant environmental planning instrument. The parties agree the DA seeks consent for the removal of existing vegetation and accordingly Ch 2 of SEPP Biodiversity applies. The Applicant has provided an Arboricultural Report prepared by the Ents Tree Consultancy. Accordingly, I am satisfied the DA considers the matters outlined in Ch 2 of SEPP Biodiversity.

29. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. The parties agree the site is located in close proximity to overhead powerlines and immediately adjacent to Parramatta Road. The DA was referred to Ausgrid and Transport for NSW, and no objections were raised. Agreed conditions of consent are imposed to ensure consistency with the submissions made in response to referrals. Accordingly, I am satisfied the DA addresses the relevant matters set out in SEPP Infrastructure.

30. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

31. The Court notes that:

1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the agreement of the Respondent.

2. The Applicant has uploaded the amended DA to the NSW Planning Portal on 24 November 2022.

3. The Applicant has filed the amended DA with the Court on 24 October 2022.

Orders

32. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA2020/0385 and rely upon amended plans and documents referred to in condition 2 at Annexure A.

2. The Applicant’s written request, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 (CLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CLEP, is upheld.

3. The appeal is upheld.

4. Consent is granted to Development Application DA2020/0385 (as amended) for the demolition of existing structures and construction of a 6 to 8 storey mixed use building comprising office premises and a 132 room hotel with ancillary amenities including a café/bar, restaurant, gymnasium, wellness centre, conference room and rooftop pool, over basement car parking, at 204-210 Parramatta Road, Auburn, subject to the conditions contained at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Annexure A

Amended Architectural Plans 

Decision last updated: 16 December 2022