Rashbehaeri & Co Pty Ltd v Cumberland Council

[2024] NSWLEC 1800

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rashbehaeri & Co Pty Ltd v Cumberland Council [2024] NSWLEC 1800

Hearing dates:

Conciliation conference 14 October 2024, 28 November 2024

Date of orders:

12 December 2024

Decision date:

12 December 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 reason of the amendment of Development Application DA2022/0786 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $3,000 to be paid within 28 days of orders being made in accordance with this agreement.

(2) The appeal is upheld.

(3) Development application DA2022/0786, as amended, for the demolition of existing structures and construction of a shop top housing development comprising of a medical centre, radiology and 4 residential units at Lot Z in DP 403715, being No. 1 Octavia Street, Toongabbie, is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of shop top housing – conciliation and amended plans and material – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.15, 8.7, 8.15

Fisheries Management Act1994

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Cumberland Local Environmental Plan 2021 cl 2.7, 4.3, 4.4, 4.6, 5.21, 6.2, 6.4, 6.7, 6.9, 6.12

Environmental Planning and Assessment Regulations 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, s 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.60, 6.65

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

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002, cl 30

State Environmental Planning Policy Amendment (Housing) 2023

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.59, 2.60

Texts Cited:

Apartment Design Guide 2016

Cumberland Development Control Plan 2021

Category:

Principal judgment

Parties:

Rashbehari Saha & Co Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
S Patterson, solicitor (Applicant)
C McFadzean, solicitor (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Cumberland Council (Respondent)

File Number(s):

2024/190118

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The Applicant appeals the actual refusal of their development application DA/2022/0786 by the Respondent, Cumberland Council. The development application, as amended, seeks consent for demolition of the existing buildings and construction of a four storey shop top housing development. The ground level is proposed to be occupied by a medical centre, physiotherapy, radiology and pharmacy uses. The development is proposed at 1 Octavia Street, Toongabbie (Lot Z in DP 4403715).

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 14 October 2024. I presided over the conciliation conference. Following the conciliation, the parties continued discussions and reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made 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 owner of the land satisfying s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified from 12 to 26 January 2023. Three letters of objection were received in response to the notification of the development application. No submissions were received by the Council.

3. State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applied at the date of lodgement of the development application. The instrument was repealed on 22 September 2023. No savings provisions apply that have the effect of continuing operation of SEPP BASIX to the development application.

4. As the site is located within 5m of a pole supporting an exposed overhead electricity power line. Because of this, the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) at s 2.48 apply. Consistent with the requirement of s 2.48(2)(a), written notice of the development application was given to Endeavour Energy. Endeavour Energy raises no objection to the development.

5. Section 2.59 in conjunction with s 2.60 of SEPP TI permits a health services facility to be carried out with consent on land zoned R4 High Density residential. Accordingly, the proposed use is permissible.

6. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The development application is accompanied by a Preliminary Site Investigation. That report concludes that there is low potential for land contamination and that the site is suitable for the proposed development. I find that s 4.6(1) of SEPP RH is satisfied.

7. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located within the Sydney Harbour Catchment. The Development Application was lodged under the provisions of the SEPP BC, as they applied on the date the development application was lodged, 6 February 2023. At that time, Ch 6 of the SEPP BC contained provisions relating to the Sydney Harbour Catchment. Those provisions continue to apply: s 6.65 SEPP BC. In relation to the provisions of Chapter 6, I find as follows:

1. The site is not mapped by Council as being susceptible to the probable maximum flood event and is not identified in an environmental planning instrument as flood liable land: s 6.5 of SEPP BC

2. In relation to s 6.6(1) ‘Water quality and quantity’ of SEPP BC I accept the agreed position of the parties that I can be satisfied that:

1. Subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a water way.

2. the development will not have an adverse impact on water flow in a natural waterbody,

3. the development is unlikely to increase stormwater runoff from the site in any significant or unacceptable manner.

4. the development does not incorporate on-site stormwater retention, infiltration or reuse.

5. the development will have no impact on the level and quality of the water table.

6. cumulative environmental impacts from the development on the regulated catchment are negligible.

7. having regard to the extent of excavation proposed, no specific measures are required protect the quality and quantity of groundwater.

3. In relation to s.6.6(2) considerations, I accept the agreed position of the parties that I can be satisfied that:

1. the effect on the quality of water entering a natural waterbody will be as close as possible to neutral.

2. the development has negligible and satisfactory water flow impacts for a natural waterbody.

4. In relation to the matters for consideration at s 6.7(1) Aquatic Ecology I accept the agreed position of the parties that I can be satisfied that:

1. to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic, or migratory animals or vegetation, the impact is minor and not determinative of the application.

2. the development does not involve the clearing of riparian vegetation.

3. the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway.

4. the development will not have an adverse impact on wetlands.

5. the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures.

6. the development does not adjoin a natural waterbody.

5. In considering the preceding matters, I accept the agreed position of the parties that I can be satisfied of the matters at s 6.7(2) Aquatic Ecology as:

1. any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development,

2. the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

3. an approval under the Water Management Act 2000 and a permit under the Fisheries Management Act 1994 are not required,

4. the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised,

5. there will be no adverse impact on wetlands.

6. Pursuant to s 6.8 Flooding, I accept the agreed position of the parties that I can be satisfied that the development:

7. (a) will not result in a release of pollutants in the event of a flood.

8. (b) will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

9. Pursuant to s 6.9, Recreation and Public Access, in determining the development application I have given consideration to the matters listed at subs (2) and I accept the agreed position of the parties that I can be satisfied that:

1. the development has no impact on public access to and from natural waterbodies for recreational purposes.

2. the development does not involve new or existing points of public access to natural waterbodies.

3. the land does not form part of a foreshore of a natural waterbody.

10. I accept that there is no likely adverse environmental impact to downstream local government areas: s 6.10 Total Catchment Management. Finally, the site is not within 100m of a natural waterbody (s 6.11), is not within a riverine scenic area (s 6.12), a Hawkesbury-Nepean conservation area sub-catchment (s 6.13) and Sydney Drinking Water Catchment (s 6.60) and does not involve temporary use of land (s 6.14).

8. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applied at the date the development application was lodged. SEPP 65 was later repealed by State Environmental Planning Policy Amendment (Housing) 2023 on 14 December 2023. No savings provision was made that had the effect of continuing operation of SEPP 65 to the development application. However, part B of Cumberland Development Control Plan 2021 (DCP 2021) provides that all residential flat building development in Cumberland will be assessed in accordance with SEPP 65. The parties agree and I accept that the minimum design standards in cl 30(1) of SEPP 65 and the Apartment Design Guide are met by the proposed development.

9. The Cumberland Local Environmental Plan 2021 (LEP 2021) is the relevant environmental planning instrument that applies to the site. The site is zoned R4 High Density Residential, and the proposed development is permitted with consent. In determining the development application, I have given consideration to the objectives of the zone, which are:

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

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

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

• To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high density residential environment.

• To encourage residential development that maintains the amenity of the surrounding area.

10. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021.

11. The four residential apartments fall within the definition of shop top housing, a use that is permitted with consent in the R4 High Density Residential zone. The consulting rooms, radiology, dental and physiotherapy are defined as a medical centre, a use that is also permitted with consent in the zone.

12. Pursuant to cl 4.3 ‘Height of Buildings’ in LEP 2021 the maximum height limit applicable to the site is 15m. The proposed development seeks to vary the height standard to accommodate the lift overrun. The development application is accompanied by a written request to vary the height standard. I have read the written request prepared by Signature Planning Services and in accordance with cl 4.6 of LEP 2021, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021). In particular, I accept that the objectives of the height standard are met notwithstanding the variation to the standard.

2. I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021).

3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3 of LEP 2021 and the objectives of the R4 High Density Residential zone.

4. Pursuant to cl 4.6(5) of LEP 2021, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

5. The states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

13. Pursuant to cl 4.4 Floor space ratio in LEP 2021 the site has a maximum floor space ratio of 1.2: 1. The development is compliant with this standard.

14. The site is identified as being subject to the flood planning level under cl 5.21 Flood Planning in LEP. As required by cl 5.21(2) of LEP 2021, in granting consent I am satisfied the development:

1. is compatible with the flood function and behaviour on the land, and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

4. incorporates appropriate measures to manage risk to life in the event of a flood, and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

15. Further, in determining the development application I have given consideration to the matters listed at cl 5.21(3) of LEP 2021. I accept the agreement of the parties that:

1. The development has no impact on projected changes to flood behaviour as a result of climate change;

2. The design and scale of the building is satisfactory and will not exacerbate flooding conditions;

3. The development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood; and

4. There is not scope or need to modify, relocate or remove the building if the surrounding area is impacted by flooding.

16. Pursuant to cl 6.2 of LEP 2021, development consent is required for the proposed earthworks. In relation to required considerations at cl 6.2(3), I accept the agreed position of the parties that:

1. Disruption to and effects on drainage patterns and soil stability are minor given the small scale of the earthworks proposed and can be appropriately managed by the development and are satisfactory.

2. The excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment.

3. The quality of soil to be excavated is of de minimis importance and not of determinative weight. Conditions of consent ensure the use of clean fill and appropriate disposal of excavated material.

4. Earthworks do not give rise to amenity impacts for adjoining properties.

5. The likelihood of disturbing relics is low.

6. The site is not proximate to a waterway, drinking water catchment of environmentally sensitive area. The prospect of any adverse impacts of the development can be managed by conditions, including the provision and maintenance of sediment and erosion control measures.

17. I am satisfied pursuant to cl 6.4 of LEP 2021 that the essential services (water supply, electricity supply, sewage disposal, stormwater management and suitable road access) necessary for the development are available or can be made available.

18. In relation to required considerations at cl 6.7(3) Stormwater in LEP 2021, I accept the agreed position of the parties that:

1. The proportion of water permeable surfaces is within reasonable expectations for this form of development.

2. It is not practicable to provide onsite stormwater retention for use as an alternative supply to mains water, and

3. Significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, will not arise and to the extent they do arise, can be mitigated by conditions, including by the provision of sediment and erosion controls during earthworks and construction phases.

19. The site is marked on the Salinity Map in LEP 2021 as ‘Potential Moderate Salinity Land’. I accept the agreed position of the parties that cll 6.9(3) and (4) are satisfied as:

1. the development is not likely to have an adverse impact on salinity processes on the land;

2. salinity is not likely to have an impact on the development in any meaningful way;

3. the development’s ground floor siting at Australian height datum 33.2 will avoid any potential significant adverse environmental impact with regard to salinity, meaning that no specific design measures are warranted to avoid salinity impacts.

20. Clause 6.12 Urban Heat applies as the development proposes both commercial premises and residential accommodation. In considering the matters at cl 6.12(2) I accept the agreed position of the parties that:

1. The façade and the roof of the proposed building and the paved surfaces are designed to reduce adverse effects of solar heat on the surrounding land, including private open space and the public domain.

2. The awnings and eaves of the building are designed to provide shelter from the sun and improve public comfort and street level.

3. The heating, ventilation and air conditioning systems of the building can be designed or conditioned to minimise the release of heat in the direction of private open space and the public domain. This requirement is implemented by the imposition of conditions 75 in Annexure A.

4. The use of green infrastructure that is strategically designed and managed to support a good quality of life in an urban environment.

5. That sufficient deep soil zones and tree coverage are proposed.

6. The building is designed to achieve passive thermal performance.

21. The DCP 2021 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. 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” (subs 34(3)(b)).

4. 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.

5. The Court notes that:

1. The Respondent, Cumberland Council, as the relevant consent authority, has agreed pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application DA2022/0786 in accordance with the documents listed below:

1. Architectural Plans prepared by Shoba Designs.

Plan and Revision	Name	Date
DA-03, Rev C2	Basement Plan	31 October 2024
DA-04, Rev C3	Ground Floor Plan	13 November 2024
DA-05, Rev C3	Level 1 Floor Plan	13 November 2024
DA-06, Rev C2	Level 2 Floor Plan	31 October 2024
DA-07, Rev C2	Level 2 Floor Plan (Post Adaptable)	31 October 2024
DA-08, Rev C2	Level 3 Floor Plan	31 October 2024
DA-09, Rev C2	Roof Plan	31 October 2024
DA-10, Rev C3	Elevations	13 November 2024
DA-11, Rev C3	Elevations	13 November 2024
DA-13, Rev C3	Sections	13 November 2024
DA-17, Rev C2	Schedule of External Finishes	31 October 2024
DA-18, Rev C2	Demolition Plan	31 October 2024

2. Stormwater Management Plan prepared by NTMA Consulting.

Plan and Revision	Name	Date
Sheet 1 of 10, Rev D	Notes & Standard Details	14 November 2024
Sheet 2 of 10, Rev D	Erosion & Sediment Control Plan	14 November 2024
Sheet 3 of 10, Rev D	Roof Level Drainage Plan	14 November 2024
Sheet 4 of 10, Rev D	Roof 1 Drainage Plan	14 November 2024
Sheet 5 of 10, Rev D	Basement Level Drainage Plan	14 November 2024
Sheet 6 of 10, Rev D	Ground Level Drainage Plan	14 November 2024
Sheet 7 of 10, Rev D	Catchment Plan	14 November 2024
Sheet 8 of 10, Rev D	Drainage Longitudinal Sections	14 November 2024
Sheet 9 of 10, Rev D	OSD Details	14 November 2024
Sheet 10 of 10, Rev D	Pump Well/Grease Arrestor Details	14 November 2024

3. Traffic Engineering Plans prepared by Stanbury Traffic Planning

Plan and Revision	Name	Date
24-098-01-V6 (Sheet 1/18)	Existing and proposed on-street parking	24 October 2024
24-098-01-V6 (Sheet 2/18)	Existing and proposed on-street parking	24 October 2024
24-098-01-V6 (Sheet 3/18)	Ground Concept Layout	24 October 2024
24-098-01-V6 (Sheet 4/18)	Basement Concept Layout	24 October 2024
24-098-01-V6 (Sheet 5/18)	Ground Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 6/18)	Ground Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 7/18)	Ground Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 8/18)	Ground Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 9/18)	Ground Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 10/18)	Basement Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 11/18)	Basement Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 12/18)	Basement Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 13/18)	Basement Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 14/18)	Basement Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 15/18)	Basement Swept Path Assessment	24 October 2024
24-098-01-V6 (Sheet 16/18)	Basement Vertical Clearance Assessment	24 October 2024
24-098-01-V6 (Sheet 17/18)	Ground Vertical Clearance Assessment	24 October 2024
24-098-01-V6 (Sheet 18/18)	Ground Vertical Clearance Assessment	24 October 2024

4. Plan of Management prepared by Signature Planning Services dated November 2024.

5. Clause 4.6 Variation Request – Height of Buildings prepared by Signature Planning Services.

6. Flood Certification prepared by GRC Hydro dated 4 November 2024.

7. Structural Analysis Report prepared by NiTmA Consulting dated 21 November 2024.

(referred to herein as “the Amended Application”).

2. That the Applicant’s written request under cl 4.6 of LEP 2021 seeking a contravention of the maximum height of buildings standard under cl 4.3 of LEP 2021 is upheld.

7. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA2022/0786 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $3,000 to be paid within 28 days of orders being made in accordance with this agreement.

2. The appeal is upheld.

3. Development application DA2022/0786, as amended, for the demolition of existing structures and construction of a shop top housing development comprising of a medical centre, radiology and 4 residential units at Lot Z in DP 403715, being No. 1 Octavia Street, Toongabbie, is determined by the grant of consent subject to the conditions in Annexure A.

D M Dickson

Commissioner of the Court 

Annexure A

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Decision last updated: 12 December 2024