Proline Building Commercial Pty Limited v City of Canada Bay Council

[2023] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:

Proline Building – Commercial Pty Limited v City of Canada Bay Council [2023] NSWLEC 1380

Hearing dates:

Conciliation conference on 3 May 2023

Date of orders:

19 July 2023

Decision date:

19 July 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant shall pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $7,000 within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA2022/0125 which seeks consent for the demolition of the existing structures and improvements and construction of two 4-storey residential flat buildings containing 48 apartments including basement car parking, remediation and associated landscaping at 40-44 Tennyson Road and 5-15 Bertram Street, Mortlake.

Catchwords:

APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.2, 6.11

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

Environmental Planning and Assessment Regulation 2021, cll 27, 29, 37, 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, s 6.65

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

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

Texts Cited:

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

Category:

Principal judgment

Parties:

Proline Building – Commercial Pty Limited (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/362576

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of two 4-storey residential flat buildings containing a total of 50 apartments at 11-15 Bertram Street and 40-44 Tennyson Road, Mortlake. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 3 May 2023. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement, the final version of which was filed on 6 July 2023, and follows the Council’s approval of an application for an amendment to a development application pursuant to cll 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The changes to the development application include the reduction in the number of units from 50 to 48, increased setbacks to level 4 of the building fronting Bertram Street, amendments to the basement configuration, raised decking on the north-eastern corner of the site to avoid impacts on tree roots, and reconfiguration of the landscaping layout. The increased setbacks allow for better articulation of the built form.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the matters about which the Court is required to be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in [8(1)] below. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purpose of a residential flat building, which is a permissible use in the R1 General Residential zone in which the site is located, pursuant to the Canada Bay Local Environmental Plan 2013 (CBLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 12m, pursuant to cl 4.3 of the CBLEP. The proposed maximum height of 13.9m represents a contravention of 1.9m above the numerical standard. The contravention is as a result of the fourth storey of the building. I am satisfied that the written request, lodged pursuant to cl 4.6 of the CBLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the proposal to achieve four storeys, which achieves consistency with the streetscape and predominant character of the area. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (“FSR”) development standard. The development standard establishes a maximum FSR of 0.75:1, pursuant to cl 4.4 of the CBLEP. The proposed development has a FSR of 1.3:1, which represents a breach of the maximum FSR by 73.73%, with additional floor space of 1923m². In accordance with cl 4.6(4)(a) of the CBLEP, I am satisfied that the written request, lodged pursuant to cl 4.6 of the CBLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard by demonstrating that the breach allows the proposal to achieve four storeys with a bulk and scale that achieves consistency with the streetscape and predominant character of the area. In addition, a small amount of the additional FSR arises from additional car parking, which is appropriate for the site’s location. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• I am satisfied that consent should be granted notwithstanding the contravention of the development standard in cl 6.11 of the CBLEP concerning apartment mix. The development standard requires 20% of units to be studio or one bedroom units and 20% of units to be 3 bedroom units. The development provides 16.66% of units as one bedroom units and 20.83% of units as three bedroom units. In accordance with cl 4.6(4)(a) of the CBLEP, I am satisfied that the written request, lodged pursuant to cl 4.6 of the CBLEP, adequately establishes sufficient environmental planning grounds that justify the breach of this development standard on the basis that a locality specific demographic study demonstrates an increased need for two bedroom units and an oversupply of one bedroom units, such that the departure from the standard is justified so as to meet the demands of the specific demographics of the area. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The development application includes earthworks for the provision of the basement level for car parking. Based on the geotechnical assessment dated 1 October 2021, the Remediation Action Plan dated 20 June 2023 (RAP) and the stormwater plans dated 25 May 2023, I have considered the matters set out in cl 6.2(3) of the CBLEP.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of s 4.6(2), I have considered a report specifying the findings of a Detailed Site Investigation prepared by EI Australia and a Remediation Action Plan dated 20 June 2023 (RAP). The RAP confirms that the site is able to be remediated in accordance with that plan, and, therefore, will be made suitable for the proposed development.

• The site is located within the area identified as the Sydney Harbour Catchment pursuant to the now repealed Ch 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which continues to apply to the development as a result of the savings provision in s 6.65. I have considered the matters in Ch 10. The parties agree, and I accept, that the proposed development will not negatively impact on the catchment, foreshore, waterways or islands of the Sydney Harbour.

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. Based on the compliance table prepared by Kennedy and Associations Architects dated 19 June 2023, I have considered the Apartment Design Guide and the design quality of the development when evaluated in accordance with the design quality principles, as required by cl 28(2) of the SEPP 65.

• The amended development application is accompanied by a statement of a qualified designer that verifies the design of the development, as required by cl 29 of the EPA Regulation 2021.

• Consistent with the requirements of cl 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 1 June 2023.

6. 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)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court notes that:

1. The City of Canada Bay Council, as the relevant consent authority, has agreed, under section 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application DA2022/0125 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Cover	DA 000	H	26.05.2023	Kennedy Associates
Perspective	DA 001	G	26.05.2023	Kennedy Associates
Introduction	DA 002	G	10.05.2023	Kennedy Associates
Site Analysis - Location Plan	DA 003	F	27.04.2023	Kennedy Associates
Site Analysis - Site Plan	DA 004	F	27.04.2023	Kennedy Associates
Site Analysis - Site Photos	DA 005	F	27.04.2023	Kennedy Associates
Design Analysis - Proposed Scheme	DA 006	G	10.05.2023	Kennedy Associates
Demolition Plan	DA 050	F	27.04.2023	Kennedy Associates
Proposed Site Plan - Ground Level	DA 051	H	26.05.2023	Kennedy Associates
Proposed Site Plan - Roof Level	DA 052	H	26.05.2023	Kennedy Associates
Proposed Level - 03	DA 097	H	26.05.2023	Kennedy Associates
Proposed Level - 02	DA 098	H	26.05.2023	Kennedy Associates
Proposed Level - 01	DA 099	H	26.05.2023	Kennedy Associates
Proposed Level 00	DA 100	H	26.05.2023	Kennedy Associates
Proposed Level 01	DA 101	H	26.05.2023	Kennedy Associates
Proposed Level 02	DA 102	H	26.05.2023	Kennedy Associates
Proposed Level 03	DA 103	H	26.05.2023	Kennedy Associates
Proposed Roof Level	DA 105	H	26.05.2023	Kennedy Associates
Street Elevations - East + West	DA 200	G	10.05.2023	Kennedy Associates
North + South Elevations	DA 201	G	10.05.2023	Kennedy Associates
Internal Elevations	DA 202	G	10.05.2023	Kennedy Associates
Sections	DA 300	G	10.05.2023	Kennedy Associates
External Finishes	DA 301	G	10.05.2023	Kennedy Associates
Summary of Area Counts	DA 400	F	27.04.2023	Kennedy Associates
Summary of GFA Counts	DA 401	G	10.05.2023	Kennedy Associates
Summary of Accommodation	DA 402	G	10.05.2023	Kennedy Associates
Summary of ADG Cross Ventilation	DA 403	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis - 1	DA 410	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis – 2	DA 411	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis – 3	DA 412	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis – 4	DA 413	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis – 5	DA 414	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis – 6	DA 415	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis - 7	DA 416	G	10.05.2023	Kennedy Associates
ADG Solar Access Analysis Tables	DA 417	G	10.05.2023	Kennedy Associates
Shadow Analysis Plans	DA 420	G	26.05.2023	Kennedy Associates
Apartment Storage Layouts – 1	DA 430	G	10.05.2023	Kennedy Associates
Apartment Storage Layouts – 2	DA 431	G	10.05.2023	Kennedy Associates
Apartment Storage Layouts – 3	DA 432	G	10.05.2023	Kennedy Associates
Adaptable Unit Layouts - 1	DA 440	F	27.04.2023	Kennedy Associates
Adaptable Unit Layouts - 2	DA 441	F	27.04.2023	Kennedy Associates
Unit Layout Type A1 + A2 + A3 + A4	DA 450	F	27.04.2023	Kennedy Associates
Unit Layout Type A5 + B + C1 + C2	DA 451	F	27.04.2023	Kennedy Associates
Unit Layout Type D1 + D2 + D3 + E1 + E2	DA 452	F	27.04.2023	Kennedy Associates
Unit Layout Type E4 + E5 + L1 + L2 + Q + R	DA 453	F	27.04.2023	Kennedy Associates
Unit Layout Type S1 + S2 + T + U	DA 454	F	27.04.2023	Kennedy Associates
Unit Layout Type G + V + W	DA 455	H	26.05.2023	Kennedy Associates
Site Massing 01	DA 500	G	26.05.2023	Kennedy Associates
Site Massing 02	DA 501	G	26.05.2023	Kennedy Associates
Perspective Impression 01	DA 510	G	26.05.2023	Kennedy Associates
Perspective Impression 02	DA 511	G	26.05.2023	Kennedy Associates
Perspective Impression 03	DA 512	G	26.05.2023	Kennedy Associates
Perspective Impression 04	DA 513	G	26.05.2023	Kennedy Associates
Perspective Impression 05	DA 514	G	26.05.2023	Kennedy Associates
Perspective Impression 06	DA 515	G	26.05.2023	Kennedy Associates
Perspective Impression 07	DA 516	G	26.05.2023	Kennedy Associates
Perspective Impression 08	DA 517	G	26.05.2023	Kennedy Associates
Perspective Impression 09	DA 518	G	26.05.2023	Kennedy Associates
Amended Landscape Plans
Master Landscape Plan	L - 100	F	11.05.2023	Space Landscape Designs
Landscape Plan – northern	L - 101	F	11.05.2023	Space Landscape Designs
Landscape Plan – southern	L – 102	F	11.05.2023	Space Landscape Designs
Amended Strata Subdivision Plans
Plan of subdivision - Location Plan	Sheet 1 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Basement Level 3 Floor Plan	Sheet 2 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Basement Level 2 Floor Plan	Sheet 3 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Basement Level 1 Floor Plan	Sheet 4 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Ground Level Floor Plan	Sheet 5 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Level 1 Floor Plan	Sheet 6 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Level 2 Floor Plan	Sheet 7 of 8	V5	08.06.2023	C & A Surveyors
Plan of subdivision - Level 3 Floor Plan	Sheet 8 of 8	V5	08.06.2023	C & A Surveyors
Amended Stormwater Plans
Stormwater Drainage Sheet and Locality Plan	DA-STW-001	K	25.05.2023	LP Consulting
Stormwater Drainage Legend, abbreviations and drawing list	DA-STW-002	K	25.05.2023	LP Consulting
Stormwater Drainage General notes	DA-STW-003	K	25.05.2023	LP Consulting
Stormwater Drainage Survey Plan	DA-STW-004	K	25.05.2023	LP Consulting
Stormwater Drainage erosion and sediment control plan	DA-STW-005	K	25.05.2023	LP Consulting
Stormwater Drainage erosion and sediment control details	DA-STW-006	K	25.05.2023	LP Consulting
Stormwater Drainage Level -03	DA-STW-101	K	25.05.2023	LP Consulting
Stormwater Drainage Level -02	DA-STW-102	K	25.05.2023	LP Consulting
Stormwater Drainage Level -01	DA-STW-103	K	25.05.2023	LP Consulting
Stormwater Drainage Level 00	DA-STW-104	K	25.05.2023	LP Consulting
Stormwater Drainage Level 01	DA-STW-105	K	25.05.2023	LP Consulting
Stormwater Drainage Level 02	DA-STW-106	K	25.05.2023	LP Consulting
Stormwater Drainage Level 03	DA-STW-107	K	25.05.2023	LP Consulting
Stormwater Drainage Roof Plan	DA-STW-108	K	25.05.2023	LP Consulting
Stormwater Drainage/OSD catchment plan	DA-STW-201	K	25.05.2023	LP Consulting
Stormwater Drainage/WSUD catchment plan	DA-STW-202	K	25.05.2023	LP Consulting
Stormwater Drainage detail sheet No 1	DA-STW-401	K	25.05.2023	LP Consulting
Stormwater Drainage detail sheet No 2	DA-STW-402	K	25.05.2023	LP Consulting
Stormwater Drainage Stormwater Filter Detail	DA-STW-403	K	25.05.2023	LP Consulting
Stormwater Drainage Stormwater Filter Detail	DA-STW-404	K	25.05.2023	LP Consulting
Stormwater Drainage Stormwater Pumpout Detail	DA-STW-405	K	25.05.2023	LP Consulting
Reports
Schedule of Architectural Amendments prepared by Kennedy and Associates dated 22 June 2023
Traffic Response to Statement of Facts and Contentions prepared by TTPP dated 15 May 2023
Amended SEPP 65 Design principles statement and design verification statement prepared by Kennedy and Associates Architects dated 19 June 2023
Amended Apartment Design Guide Compliance Table prepared by Kennedy and Associates Architects dated 19 June 2023
Clause 4.6 Request to vary Floor Space Ratio Development Standard prepared by Ethos Urban dated 9 June 2023
Clause 4.6 Request to vary Dwelling Size Development Standard prepared by Ethos Urban dated 18 May 2023
Amended Remediation Action Plan prepared by eiaustralia dated 20 June 2023
Interim Site Audit Advice prepared by Environmental Earth Sciences dated 21 June 2023
Tree Management Protection Plan prepared by CPS dated 15 May 2023
Arboricultural Comment – Root Sensitive Soil Remediation Methodology prepared by CPS dated 23 June 2023
Tree Selection statement prepared by Space Landscape Designs dated 16 March 2023
Amended Operational Waste Management Plan prepared by Elephants Foot dated 12 May 2023
Demolition and Construction Waste Management Plan prepared by Proline Building dated 5 May 2023
Amended BASIX Certificate and Stamped plans and NatHERS Certificate prepared by AENEC dated 1 June 2023

2. That the Applicant will file the Amended Application with the Court by 6 July 2023.

9. The Court orders that:

1. The applicant shall pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $7,000 within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application DA2022/0125 which seeks consent for the demolition of the existing structures and improvements and construction of two 4-storey residential flat buildings containing 48 apartments including basement car parking, remediation and associated landscaping at 40-44 Tennyson Road and 5-15 Bertram Street, Mortlake.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 19 July 2023