Skyton Holdings No 5 Pty Ltd v Strathfield Municipal Council

[2023] NSWLEC 1724

Land and Environment Court

New South Wales

Medium Neutral Citation:

Skyton Holdings No 5 Pty Ltd v Strathfield Municipal Council [2023] NSWLEC 1724

Hearing dates:

Conciliation conference held on 24 November 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The written request, prepared by Think Planners, dated 19 April 2023, pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 and seeking a variation to the height of building development standard, pursuant to clause 4.3, is upheld.

(2) The appeal is upheld.

(3) Development Application DA2021/272, which seeks the demolition of existing structures, tree removal, and construction of a part 4 storey, part 5 storey residential flat building with basement car parking containing 45 residential units on Lot 3 in Deposited Plan (DP) 1261802, also known as 74-76 Marlborough Road, Homebush West, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – breach in height development standard – variation of development standard - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

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, Ch 4, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.47, 2.98, 2.99

State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cll 28, 30

Strathfield Local Environmental Plan 2012, cll 2.3, 4.3, 4.6

Texts Cited:

Strathfield Development Control Plan 20 – Parramatta Rd Corridor 2006

Category:

Principal judgment

Parties:

Skyton Holdings No 5 Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
M Mallos (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2022/320290

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA2021/272 (the DA) by the Strathfield Municipal Council (the Council), which as amended, seeks demolition of existing structures, tree removal, and construction of a part 4 storey, part 5 storey residential flat building with basement car parking containing 45 residential units and landscaping on Lot 3 in Deposited Plan (DP) 1261802, also known as 74-76 Marlborough Road, Homebush West (the site).

Background

2. The DA was lodged with Council on 20 October 2021. The original DA was notified to residents, with eighty submissions received, and was also referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA was considered by the Council’s Design Review Panel on 8 December 2021.

3. The DA was referred to the Strathfield Local Planning Panel, who recommended refusal of the DA on 6 October 2022. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held before me as Duty Commissioner.

5. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA2021/272, with conditions. Council has delegation to enter into the agreement.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA2021/272, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Strathfield Local Environmental Plan 2012 (SLEP):

1. Pursuant to cl 2.3 of the SLEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the SLEP, although there is a breach in cl 4.3 height development standard that requires a variation to be sought.

2. The proposed development breaches the height development standard described in cl 4.3, that requires the maximum height in the R3 zone to not exceed 11 m, noting that the 20 m standard that applies to a small portion of the site is not breached. The height breach relates to the building form and lift overrun. Therefore, the application relies on a cl 4.6 written request to vary the height standard, pursuant to cl 4.6 of the SLEP.

3. The proposed development proposes a maximum height of 19.65 m. The cl 4.6 written request provided to the Court explains that the non-compliance in the height standard does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity, including solar access. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk and scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard.

4. The Court must be satisfied to grant consent to the application that the cl 4.6 request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the SLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the height standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R2) in cl 2.3 and cl 4.3 height standard of the SLEP. The breach in the height standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development.

5. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed, and that a variation in the cl 4.3 of the SLEP height development standard should be granted.

2. State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65):

1. The DA proposes development for residential apartments, that engages consideration of the relevant provisions of SEPP 65.

2. Pursuant to cl 28(2)(a) of SEPP 65, Council’s design review panel assessed the original DA, and the amendments made to the DA have considered the advice of the design review panel.

3. Pursuant to cl 28(2)(b) of SEPP 65, the DA relies on a SEPP 65 Design Verification Report, prepared by Architex, dated 11 October 2023. The design quality principles established in SEPP 65 have been considered and are addressed by the amended design.

4. Pursuant to cl 28(2)(c) of SEPP 65, the Design Verification Report considers the requirements described in the Apartment Design Guide 2015. The relevant considerations are deemed to comply or have merit.

5. Pursuant to cl 30(2)(a) of the SEPP 65, the Respondent is satisfied the proposed development has had regard and demonstrates design quality principles.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site is adjacent to a rail corridor, engaging s 2.98 and requiring consideration of s 2.99 of the SEPP Infrastructure. The site contains an electricity tower and an electricity easement, requiring consideration of pursuant to s 2.47.

2. The DA is supported by a Noise Assessment for Multi-storey Residential Development, prepared by Rodney Stevens Acoustics, dated 24 August 2023.

3. The DA was referred to Ausgrid and Sydney Trains, and the general terms of approval issued are considered in the amended development and conditions of consent. The development does not propose to excavate >2m within 25m of the rail corridor. The buildings relating to the proposed building are not within the easement, with this area to be used as communal open space.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the existing use of the site as residential and documents that support the DA, the Council has appropriately considered that the site is not contaminated, which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6.

2. The DA is supported by a Detailed Site Investigation, prepared by Foundation Earth Sciences Pty Ltd, dated September 2021.

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

1. A BASIX Certificate (1223930M_03), issued on 15 September 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

6. Strathfield Development Control Plan No 20 – Parramatta Rd Corridor (SDCP):

1. The original DA was publicly notified in accordance with the SDCP, with eighty submissions received, respectively. The relevant requirements of the SDCP have been considered in the Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.

9. Pursuant to cl 49(1) of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA2021/272 can be granted consent.

13. 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.

14. The Court notes that:

1. Strathfield Municipal Council, as the relevant consent authority, has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA2021/272 as follows:

Description	Reference No.	Date	Revision	Prepared by
Site Analysis	2534_01	29/09/21	E	Architex
Site Plan	2534_03	13/04/22	F	Architex
Basement 02	2534_04	04/04/23	K	Architex
Basement 01	2534_05	07/03/23	J	Architex
Level 01	2534_06	22/08/23	O	Architex
Level 02	2534_07	22/08/23	O	Architex
Level 03	2534_08	22/08/23	O	Architex
Level 04	2534_09	22/08/23	O	Architex
Level 05	2534_10	22/08/23	O	Architex
Roof Plan	2534_11	04/04/23	K	Architex
Streetscape Elevations	2534_12	24/07/23	L	Architex
Site Elevations	2534_13	22/08/23	O	Architex
Site Elevations	2534_14	22/08/23	O	Architex
Site Sections	2534_15	24/07/23	L	Architex
Site Details	2534_16	13/04/22	F	Architex
Post-Adaptable Layout	2534_20A	24/07/23	L	Architex
Post-Adaptable Layout	2534_20B	13/04/23	F	Architex
Post-Adaptable Layout	2534_20C	13/04/23	F	Architex
Driveway Ramp Sections	2534_21	13/04/23	F	Architex
Waste Management Plan	2534_22	07/03/23	J	Architex
Bin Collection + Front Boundary Details	2534_23	07/02/23	J	Architex
Schedule of Finishes	2534_29	24/07/23	L	Architex
Plenum Locations – Levels 1 - 4	2534_40	22/08/23	O	Architex
Plenum Locations & Sections	2534_41	22/08/23	O	Architex
Concept Stormwater Layout Drawing Basement Level 2 , Pump Out Tank Details and Notes	2896-DA_SW010	08/03/23	C	Mance Arraj
Concept Stormwater Layout Drawing Basement Level 1 , Pump Out Tank Details and Notes	2896-DA_SW020	08/03/23	C	Mance Arraj
Concept Stormwater Layout Drawing Ground Level and OSD Calculations	2896-DA_SW030	08/03/23	C	Mance Arraj
Concept Stormwater Layout Drawing Music Model Catchment and Results and Sediment Erosion Control Details	2896-DA_SW040	08/03/23	C	Mance Arraj
Stormwater Quality Management Plan	-	March 2023	C	Mace Arraj
Landscape Masterplan	4720d_L-01/4	09/03/23	D	RFA Landscape Architects
Landscape Plan	4720d_L-02/4	09/03/23	D	RFA Landscape Architects
Landscape Plan	4720d_L-03/4	09/03/23	D	RFA Landscape Architects
Level Five Planterbox Plan	4720d_L-04/4	09/03/23	D	RFA Landscape Architects
Amended Waste Management Plan	REF-21133	April 2023	-	Dickens Solutions
Natural Ventilation Statement	WH856-01F02	23 August 2023	6	Windtech
Traffic and Parking Assessment Report	21400	21 February 2023	-	Varga Traffic Planning
Noise Assessment Proposed Multi-storey Residential Development	210525R1	24 August 2023	8	Rodney Stevens Acoustics
BASIX Assessment Report	ES20210630	15/09/2023	00	ESD Synergy
BASIX Certificate	1223930M_03	15 September 2023	ESD Synergy
NatHERS Certificate	00066526200	15 September 2023	EDS Synergy
Amended Statement of Environmental Effects	19 April 2023	Final	Think Planners

2. The Applicant has filed the amendments to the Development Application DA2021/272 with the Court on 24 and 27 November 2023.

15. The Court orders that:

1. The written request, prepared by Think Planners, dated 19 April 2023, pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 and seeking a variation to the height of building development standard, pursuant to clause 4.3, is upheld.

2. The appeal is upheld.

3. Development Application DA2021/272, which seeks the demolition of existing structures, tree removal, and construction of a part 4 storey, part 5 storey residential flat building with basement car parking containing 45 residential units on Lot 3 in Deposited Plan (DP) 1261802, also known as 74-76 Marlborough Road, Homebush West, is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 01 December 2023