Rusty Man Pty Ltd v Eurobodalla Shire Council

[2024] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rusty Man Pty Ltd v Eurobodalla Shire Council [2024] NSWLEC 1110

Hearing dates:

Conciliation conference on 24 January 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,000. Payment is to be made within 30 days of the Court’s order.

(2) The appeal is upheld.

(3) Development Application No DA0604/23 for the demolition of an existing local heritage item and construction of a mixed use development comprising shop top housing above commercial premises, serviced apartments (tourist and visitor accommodation), basement car parking, strata subdivision and associated site works on land legally identified as Lot 2, DP207494 and Lot 5, section 3, DP758754 known as 121 Campbell Street and 123 Wagonga Street, Narooma, is determined by the grant of consent subject to the conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – shop top housing in E1 Local Centre zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.15

Heritage Act 1977, s 57

Land and Environment Court Act 1979, s 34

Roads Act 1993, ss 7, 138

Strata Schemes Management Act 2015

Environmental Planning and Assessment Regulation 2021, ss 29, 38

Eurobodalla Local Environmental Plan 2012, cll 2.6, 4.3, 4.6, 5.10, 6.3, 6.4, 6.9, 6.11, Sch 5

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

State Environmental Planning Policy (Housing) 2021, Sch 7A

State Environmental Planning Policy (Resilience and Hazards) 2021, Pt 2.2, ss 2.10, 2.11, 4.6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120

State Environmental Planning Policy Amendment (Housing) 2023

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

NSW Department of Planning and Environment, Development Near Rail Corridors and Busy Roads – Interim Guidelines (2008)

Category:

Principal judgment

Parties:

Rusty Man Pty Ltd (Applicant)
Eurobodalla Shire Council (Respondent)

Representation:

Counsel:
A Menyhart (Solicitor) (Applicant)
D Gunter (Solicitor) (Respondent)

Solicitors:
Bradley Allen Love (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2023/250796

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Eurobodalla Shire Council (the Respondent) of development application DA0604/23 (the DA) seeking consent for the demolition of an existing local heritage item and construction of a part-three, and part-four storey mixed use development comprising shop top housing, tourist and visitor accommodation, basement car parking, strata subdivision and associated site works at 121-123 Wagonga Street, Narooma (the site), legally described as Lot 2 in DP207494 and Lot 5, Section 3 in DP758754.

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 24 January 2023, at which I presided.

3. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application (Amended DA).

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 1 March 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [57], and I am satisfied for the reasons that follow.

9. The DA was lodged by the Applicant with consent of the owner of the site, on 19 May 2023, and was notified between 24 May 2023 and 26 June 2023, during which time twenty-seven public submissions were received.

10. It is also relevant to record that the DA also proposes the removal of trees on neighbouring lot at 119 Wagonga Street, Narooma, for which owner’s consent is also provided.

11. The site is located within the E1 Local Centre, according to the Eurobodalla Local Environmental Plan 2012 (ELEP), in which shop top housing and commercial premises are permitted with consent, where consistent with the objectives of the E1 zone.

12. The objectives are:

•  To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To ensure that development retains a scale and character consistent with the local area.

•  To ensure that development does not adversely affect the adjoining residential amenity.

13. I also note subdivision, pursuant to the Strata Schemes Management Act 2015 is permissible with development consent under cl 2.6 of the ELEP.

14. The height of building standard applicable to the site at cl 4.3 of the ELEP is 11.5m. The parties agree the proposal exceeds the height of building standard, and the development application, as amended, is supported by a written request prepared in accordance with cl 4.6 of the ELEP, authored by The Planning Hub dated 14 December 2023 (the written request).

15. The maximum height of the proposed development is identified at Section 2.0 of the written request as 13.394m, and so the height standard is exceeded.

16. The written request asserts compliance with the height standard is unreasonable or unnecessary in the circumstances of this case, because the objectives are achieved, notwithstanding the non-compliance.

17. The relevant objectives, at cl 4.3 of the ELEP, are as follows:

(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.

18. In summary, the written request argues the following:

1. The exceedance is a result of the stepped building form on the sloping topography of the site, evidenced by the exceedance being substantially limited to the roof element at the uppermost floor and minor portion of the upper level.

2. The proposed bulk and scale of the frontage to Wagonga Street is virtually identical to the existing retail building on the site. To the rear, in the location of the exceedance, the bulk is broken down, set back from the northern boundary and steps with the fall of the site.

3. The existing frontage to the heritage building on the site is maintained, and integrated into the development, and so preserves the important features of the character in the locality.

4. Visual impact and loss of views are minimised, as evident in the Visual Impact Assessment that assesses the visual impact and view loss from 26 vantage points in the vicinity of the site.

5. Shadow diagrams prepared by the Applicant’s architect, Liquid Design, demonstrate that loss of solar access is minimised by shadow falling on Wagonga Street in the morning, and adjoining properties to the south-east are not affected until 3pm.

19. Next, the environmental planning grounds advanced by the written request are as follows:

1. Notwithstanding the stepped built form, the steep slope of the site, which measuring around 5-6m in fall, contributes to the exceedance which is minor, and does not result in additional floor space.

2. Adverse impacts on surrounding properties arising from the exceedance are considered minimal or does not result.

3. The proposal is consistent with the objectives of the E1 zone and of the height standard.

20. I am satisfied that the written request has adequately addressed the matters to be demonstrated by cl 4.6(3)(a) and (b) of the ELEP for the reasons set out in the written request.

21. Finally, the height request asserts consistency with the objectives of the zone, at [12], because the development proposes a variety of uses that serve the needs of people in work and visit the area; will offer employment in those uses; will contribute to the vibrancy and activity in the local centre through the ground floor commercial tenancies and residential accommodation above without adversely affecting adjoining residential amenity.

22. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the ELEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the E1 zone.

23. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the ELEP.

24. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

25. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the E1 zone.

26. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the ELEP and I find no grounds on which the Court should not uphold the written request.

27. An existing building on the site is listed in Sch 5 of the ELEP for its local heritage significance. Furthermore, the site is also located in proximity to the ‘War Memorial Clock’ at Wagonga Street, Narooma the Court house at 100 Campbell Street, Narooma; being items of local heritage significance. The heritage significance of the site is primarily attributed to the façade fronting Wagonga Street that is proposed to be retained and incorporated into the proposed development. As such, I accept the effect of the proposal on the heritage item, and heritage items in the vicinity, has been considered to be acceptable, in accordance with cl 5.10 of the ELEP.

28. The site is not identified on the relevant map at cl 6.3(2) of the ELEP to be classified as acid sulfate soils.

29. On the basis of the following documents, I accept that the parties have appropriately considered those matters that must be considered as cl 6.4(3) of the ELEP:

1. Geotechnical Investigation Report prepared by ACT Geotechnical Engineers dated May 2022;

2. Structural Investigation Report prepared by AE Consulting Engineers Pty Ltd dated 15 August 2022;

3. Stormwater Management Concept Plan prepared by Global Project Engineers (Stormwater Plan);

4. Site Waste Minimisation and Management and a Preliminary Construction Management Plan prepared by Liquid Design dated 25 October 2023; and

5. Aboriginal Heritage Due Diligence Statement prepared by Navin Officer heritage consultants dated 20 February 2023.

30. Having considered the amended Landscape Plan prepared by Conzept dated 7 November 2023, and the updated Stormwater Plan, I am satisfied that the development is designed to maximise the use of water permeable surfaces, includes onsite stormwater retention and so avoids the impact of stormwater run off to adjoining downstream properties in accordance with cl 6.9 of the ELEP.

31. Clause 6.11 of the ELEP precludes consent for development in the E1 zone unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use, but for any part of a building that is used for entrances, lobbies or vehicle access. On the basis of the amended architectural plans, I am so satisfied.

Development is not Integrated Development

32. The DA identifies as integrated development under the Heritage Act 1977 (Heritage Act) and the Roads Act 1993 (Roads Act), however, does not meet the requirements for integrated development under s 4.46(1) of the EPA Act.

33. As the proposed development does not involve an interim heritage order or listing on the State Heritage Register, the DA is not integrated development under s 57(1) of the Heritage Act and s 4.46(1) of the EPA Act.

34. The DA also proposes works adjacent to and fronting Campbell Street, otherwise known as the Princes Highway, which is a State road, and proposes works in road reserves, for which consent under s 138 of the Roads Act is required.

35. Section 4.46(3) of the EPA Act provides:

Development is not integrated development in respect of the consent required under section 138 of the Roads Act 1993 if, in order for the development to be carried out, it requires the development consent of a council and the approval of the same council.

36. The Respondent is the Roads Authority for Campbell Street/Princes Highway under s 7 of the Roads Act. The Respondent has sought advice from Transport for NSW (TfNSW) in accordance with s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP). TfNSW has provided a response, with no objections to the proposed development, subject to conditions that are incorporated into the agreed conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

37. As the land is identified as ‘coastal environmental area’ and ‘coastal use area’, Pt 2.2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) applies.

38. Section 2.10(1) of the Resilience SEPP precludes development consent on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the matters listed at subs (a) – (g). Having considered the location of the site, and its distance from the landscape features and processes that are the object of subs (a)-(g), I conclude the impact of the proposal to be acceptable.

39. I am also satisfied that the development has been designed, sited and will be managed to maintain safe access to the foreshore by members of the public, and, on the basis of the Landscape Plans and Stormwater Plan cited at [29(3)], will not have any adverse impact on the coastal environmental values and natural coastal processes of the area.

40. Likewise, I have considered whether the proposal is likely to cause an impact of the sort at s 2.11 of the Resilience SEPP. On the basis of the site’s distance from the shoreline, beach, headlands or rock platforms, and after considering the Visual Impact Assessment by Urbaine Design Group dated 7 November, I am satisfied the development is designed, sited and will be managed to avoid adverse of a sort in s 2.11(1)(a) of the Resilience SEPP.

41. In arriving at this state of satisfaction, I have also considered the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. For reasons similar to those at [18], I conclude the bulk, scale and size of the development as proposed is appropriate to the surrounding coastal and built environment of the locality in this part of Narooma.

42. Section 4.6 of the Resilience SEPP requires consideration of whether the land is contaminated. On the basis of the Preliminary Site Investigation, and Detailed Site Investigation dated 2 March 2023, prepared by Lanterra Consulting Pty Limited, I accept the site is considered suitable for the development proposed to be carried out on the land.

State Environmental Planning Policy (Transport & Infrastructure) 2021

43. Written notice of the DA has been given to Essential Energy, consistent with s 2.48 of the Infrastructure SEPP, and the agreed conditions of consent require the beneficiary of the consent to provide the Respondent with written confirmation from Essential Energy that the development complies with safe distances or has been granted an exemption to encroach on Essential Energy’s infrastructure.

44. As the site fronts a classified road, s 2.119(2) of the Infrastructure SEPP applies and requires the consent authority, or the Court exercising the functions and discretions of the Respondent, to be satisfied that:

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

…

45. I have formed the opinion of satisfaction required by s 2.119 for the reasons that follow:

1. Vehicular access to the development is located on Noorooma Crescent and so from other than the classified road.

2. The amended Traffic Impact Assessment prepared by Genesis Traffic dated 15 December 2023 confirms that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the vehicular access proposed off Noorooma Crescent.

3. A Traffic Noise Intrusion Assessment prepared by Harwood Acoustics dated 17 April 2023 concludes that the potential traffic noise from the classified road can be ameliorated and that the internal noise limits prescribed in s 2.120(3) of the Infrastructure SEPP can be achieved, subject to recommendations in Section 5 being adopted.

46. I also accept the joint position of the parties that the Respondent has taken into consideration the NSW Department of Planning and Environment, Development Near Rail Corridors and Busy Roads – Interim Guidelines (2008) as part of its assessment of the DA, in accordance with s 2.120(2) of the Infrastructure SEPP.

State Environment Planning Policy No 65 – Design Quality of Residential Development

47. As the proposal is for residential apartment development, shop top housing or mixed-use development with a residential component, the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) would apply but for its repeal by State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

48. I note the repeal of SEPP 65 is not saved by the provision at Sch 7A(2) of the Housing SEPP, as the repeal was given effect by State Environmental Planning Policy Amendment (Housing) 2023, that does not contain a savings provision in the form that it appears in Sch 7A of the Housing SEPP.

49. Nevertheless the parties agree that where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

50. The statement must conform to the provisions of s 29(2) of the EPA Regulation, which I note include attestations virtually identical to those at cl 28(2)(b) and (c) of SEPP 65.

51. I am satisfied that the statement provided by Mr Chris Bombardiere (Reg No.8123) dated 25 October 2023 is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the Apartment Design Guide.

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

52. The application is accompanied by a BASIX certificate (Cert No. 1371374M) prepared by Max Brightwell in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation.

53. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

54. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

55. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

56. The Court notes that:

1. The Respondent has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the Development Application No DA0604/23 and the supporting documents, the subject of these proceedings, to rely on the documents and further information specified in Annexure ‘A’.

2. The Applicant filed the documents and further information specified in Annexure ‘A’ with the Court on 4 March 2024.

Orders

57. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,000. Payment is to be made within 30 days of the Court’s order.

2. The appeal is upheld.

3. Development Application No DA0604/23 for the demolition of an existing local heritage item and construction of a mixed use development comprising shop top housing above commercial premises, serviced apartments (tourist and visitor accommodation), basement car parking, strata subdivision and associated site works on land legally identified as Lot 2, DP207494 and Lot 5, section 3, DP758754 known as 121 Campbell Street and 123 Wagonga Street, Narooma, is determined by the grant of consent subject to the conditions of consent in Annexure B.

……………………

T Horton

Commissioner of the Court

Annexure A (233058, pdf)

Annexure B (572629, pdf)

**********

Decision last updated: 14 March 2024