SRH Architecture Pty Ltd v City of Canada Bay Council

[2025] NSWLEC 1087

Land and Environment Court

New South Wales

Medium Neutral Citation:

SRH Architecture Pty Ltd v City of Canada Bay Council [2025] NSWLEC 1087

Hearing dates:

Conciliation conference 7 February 2025

Date of orders:

18 February 2025

Decision date:

18 February 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No DA2023/0276 (PAN-392711) pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $8,000.00. Payment is to be made within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No DA2023/0276 (PAN-392711), for the demolition of existing buildings and construction of a new mixed-use development with 28 residential apartments, 1 commercial premises, basement parking and associated works at 15-25 Hilly Street, Mortlake (Lots 6 and 7 in DP18575, Lot 5 in DP 1161154, Lot 5 in DP1042975, Lot 5 in DP1098885 and Lot 1 in DP81918), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Canada Bay Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.11

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9, 6.10

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

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 144, 147, Sch 7A, s 8, Sch 9

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

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

The City of Canada Bay Development Control Plan 2023

Category:

Principal judgment

Parties:

SRH Architecture Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/246431

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application No DA2023/0276 for the demolition of existing buildings and construction of a new mixed-use development with 27 apartments, 1 commercial tenancy, basement parking and associated works (DA) at 15-25 Hilly Street, Mortlake, legally known as Lots 6 and 7 in DP 18575, Lot 5 in DP 1161154, Lot 5 in DP 1042975, Lot 5 in DP 1098885 and Lot 1 in DP 81918 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 7 February 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA2023/0276 in accordance with the documents listed below (amended DA).

1. Amended architectural plans prepared by SRH Architecture Pty Ltd:

Drawing No.	Drawing Name	Date
DA000, Revision 05	Cover Page	09/12/2024
DA001, Revision 05	Drawing List + Location Plan	21/11/2024
DA002, Revision 06	BASIX Commitments	9/12/2024
DA003, Revision 05	Site Analysis	21/11/2024
DA004, Revision 05	Surrounding Built Form	21/11/2024
DA005, Revision 05	Context Elevations / Sections	21/11/2024
DA006, Revision 05	Amalgamation Plan	21/11/2024
DA007, Revision 05	Demolition Plan	21/11/2024
DA010, Revision 05	Bulk & Scale 01	21/11/2024
DA011, Revision 05	Bulk & Scale 02	21/11/2024
DA012, Revision 05	Bulk & Scale 03	21/11/2024
DA100, Revision 05	Site & Roof Plan	21/11/2024
DA101, Revision 05	Basement 2 Plan	21/11/2024
DA102, Revision 05	Basement 1 Plan	21/11/2024
DA103, Revision 06	Ground Floor Plan	9/12/2024
DA104, Revision 05	Level 1 Plan	21/11/2024
DA105, Revision 05	Level 2 Plan	21/11/2024
DA106, Revision 05	Level 3 Plan	21/11/2024
DA107, Revision 05	Level 4 Plan	21/11/2024
DA108, Revision 06	Level 5 Plan	9/12/2024
DA109, Revision 05	Adaptable Units Layouts	21/11/2024
DA200, Revision 05	West Elevation	21/11/2024
DA201, Revision 06	North Elevation	912/2024
DA202, Revision 06	East Elevation	9/12/2024
DA203, Revision 05	South Elevation	21/11/2024
DA300, Revision 05	Section A-A	21/11/2024
DA301, Revision 05	Section B-B	21/11/2024
DA302, Revision 05	Section C-C	21/11/2024
DA400, Revision 05	Shadow Diagrams 01	21/11/2024
DA401, Revision 05	Shadow Diagrams 02	21/11/2024
DA402, Revision 05	Shadow Diagrams 03	21/11/2024
DA403, Revision 05	Shadow Diagrams 04	21/11/2024
DA410, Revision 05	Views From The Sun 01	21/11/2024
DA411, Revision 05	Views From The Sun 02	21/11/2024
DA412, Revision 05	VFTS – 100 Tennyson 01	21/11/2024
DA413, Revision 05	VFTS – 100 Tennyson 02	21/11/2024
DA414, Revision 05	VFTS – 100 Tennyson 03	21/11/2024
DA415, Revision 05	VFTS – 100 Tennyson 04	21/11/2024
DA420, Revision 05	Solar + Cross Ventilation	21/11/2024
DA430, Revision 05	Privacy Diagrams 01	21/11/2024
DA500, Revision 06	Area Calculations 01	9/12/2024
DA501, Revision 05	Area Calculation 02	21/11/2024
DA600, Revision 05	Materials Schedule	09/12/2024
DA700, Revision 05	Render 01	09/12/2024
DA701, Revision 05	Render 02	09/12/2024
DA702, Revision 05	Render 03	09/12/2024
DA703, Revision 05	Render 04	09/12/2024
DA704, Revision 05	Render 05	09/12/2024

2. Amended landscape plans prepared by Ben Kaye Garden Design:

Drawing No.	Drawing Name	Date
GF, Issue 03, Revision B	Landscape Ground Floor	December 2024
L1, Issue 03, Revision B	Landscape Level 1	December 2024
L4, Issue 03, Revision B	Landscape Level 4	December 2024
L5, Issue 03, Revision B	Landscape Level 5	December 2024

3. Amended stormwater management plans prepared by Greenview Consulting:

Drawing No.	Drawing Name	Date
C01, Revision 4	Notes and Legends	06.12.2024
C02, Revision 4	Basement 2 Drainage Plan	06.12.2024
C03, Revision 4	Basement 1 Drainage Plan	06.12.2024
C04, Revision 4	Ground Floor Drainage Plan	06.12.2024
C05, Revision 4	Level 1 Drainage Plan	06.12.2024
C06, Revision 4	Site Stormwater Details Sheet 1	06.12.2024
C07, Revision 2	Site Stormwater Details Sheet 2	06.12.2024
C08, Revision 2	MUSIC Modelling	06.12.2024
C09, Revision 2	Catchment Plan	06.12.2024

4. Updated Clause 4.6 Report, Building Height, prepared by Think Planners dated 10 December 2024.

5. Updated Clause 4.6 Report, Floor Space Ratio, prepared by Think Planners dated 10 December 2024.

6. Updated Clause 4.6 Report, Apartment Mix, prepared by Think Planners dated 10 December 2024.

7. Updated Design Verification Statement prepared by SRH Architecture Pty Ltd dated 10 December 2024.

8. View Analysis (507/16 Hilly Street, Mortlake), prepared by SRH Architecture Pty Ltd dated 9 December 2024.

9. Remedial Action Plan prepared by Sullivan Environmental Sciences Pty Ltd dated 11 October 2024.

10. Preliminary Acid Sulfate Soils Assessment prepared by Sullivan Environmental Sciences Pty Ltd dated 14 October 2024.

11. Updated Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering and Road Safety Consultants dated 10 December 2024.

12. Letter from Waste Audit GFA Consulting (Aust) Pty Ltd dated 6 December 2024.

13. Operational Waste Management Plan prepared by Waste Audit GFA Consulting (Aust) Pty Ltd dated January 2025.

14. BCA Assessment Report prepared by Nest Consulting Group dated 10 December 2024.

15. Fire Engineering Statement prepared by Voss Grace + Partners Consulting Fire Engineers dated 10 December 2024.

16. BASIX Certificate No. BSX-21754M_02 prepared by SLR Consulting Pty Ltd dated 9 December 2024.

17. Nationwide House Energy Rating Scheme Certificate No. BPT5AUVRSH prepared by Xinyi Li dated 9 December 2024.

18. Letter from Greenview Consulting dated 24 January 2025.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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 development application.

Jurisdictional Prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

8. I am satisfied that owners consent accompanied the Class 1 appeal. The DA was lodged to Council on 7 December 2023. The Respondent notified the DA between 19 December 2023 to 7 February 2024 and 10 submissions were received.

9. As the parties have reached agreement, the merit concerns raised in the submissions have been considered by the Respondent and Applicant.

10. The parties have agreed that the City of Canada Bay Development Control Plan 2023 and s 4.15(1)(b)-(e) of the EPA Act have been considered as demonstrated in the Statement of Environmental Effects prepared by Think Planners.

Water Management Act 2000

11. The proposed development is integrated development pursuant to s 4.46 of the EPA Act, requiring a water supply work approval under the Water Management Act 2000.

12. The DA was referred to WaterNSW who issued General Terms of Approval on 24 April 2024 (GTAs). The GTAs have been included in the conditions of consent at Annexure A.

Canada Bay Local Environmental Plan 2013 (CLEP)

13. The site is zoned R1 General Residential under the CLEP. The proposed development for a residential flat building and commercial premises is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 applies, which allows demolition with development consent.

14. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 12m. The amended DA is 19.6m at its highest point and seeks a variation to the development standard. The amended DA is supported by a cl 4.6 written request to vary the building height prepared by Think Planners dated 10 December 2024 (height written request). The parties are satisfied of the merits of the written request. I accept that the height written request addresses the legally mandatory provisions of cl 4.6 in accordance with s 34(3) of the LEC Act.

15. Clause 4.4 floor space ratio (FSR) applies to the site, permitting a maximum FSR of 0.75:1. The amended DA proposes an FSR of 1.76:1. The amended DA seeks to vary the development standard pursuant to cl 4.6 and is supported by a cl 4.6 written request to vary FSR prepared by Think Planners dated 10 December 2024 (FSR written request). The parties are satisfied of the merits of the FSR written request. I accept that the written request addresses the legally mandatory provisions of cl 4.6 in accordance with s 34(3)(a) of the LEC Act.

16. Clause 6.1 acid sulfate soils and its mapping identifies the site as Class 5 soils. The proposed development has not been identified as lowering the watertable and an acid sulfate soils plan is not required. Notwithstanding, a Preliminary Acid Sulfate Soils Assessment prepared by Sullivan Environmental Sciences dated 14 October 2024 accompanies the amended DA which concludes that it is unlikely for acid sulfate soils to be present on the site and the proposed development is unlikely to disrupt any such soils on adjoining sites.

17. Clause 6.2 earthworks applies to the amended DA. I accept the parties’ agreement that the provisions of cl 6.2 have been considered as demonstrated through the amended stormwater plans prepared by Greenview Consulting dated 6 December 2024 (SW plans), Remedial Action Plan prepared by Sullivan Environmental Sciences dated 11 October 2024 (RAP), Geotechnical Inspection Report prepared by D Katauskas Consulting Geotechnical Engineer dated 3 July 2024 and Waste Management Plans prepared by Waste Audit and Consultancy Services dated 6 December 2024 and January 2025.

18. Clause 6.11 regarding mixed dwelling sizes applies. The amended DA is deficient by one, one bedroom apartment. The amended DA seeks to vary the development standard pursuant to cl 4.6 and is supported by a cl 4.6 written request prepared by Think Planners dated 10 December 2024 (apartment mix written request). The parties are satisfied of the merits of the apartment mix written request. I accept that the written request addresses the legally mandatory provisions of cl 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

19. The site is located within the Sydney Harbour Catchment area and Ch 6 applies. I accept the parties’ agreement that the amended DA satisfies the provisions of ss 6.6, 6.7, 6.9 and 6.10 on the basis of the SW plans that form conditions of consent at Annexure A and the detailed jurisdictional statement. The parties agree that adequate stormwater measures are proposed that will result in a neutral or beneficial impact on water quality and the impacts of water flow have been minimised as required by the provisions.

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

20. An amended BASIX Certificate accompanies the amended DA that meets the requirements.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

21. Chapter 4 of the Housing SEPP applies to the amended DA in accordance with Sch 7A s 8(2A) and s 144. Section 147 requires consideration of the design principles contained in Sch 9 and the Apartment Design Guide (ADG).

22. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Parts 3 and 4 ADG.

23. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the updated Design Verification Statement completed by the nominated qualified designer Simon Hanson (registered architect number 6739) dated 10 December 2024 and consideration of the advice from the Canada Bay Design Review Panel.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

24. The provisions of s 4.6 of SEPP RH apply to the site. The amended DA is accompanied by a RAP which provides recommendations to decommission the underground storage tank and other identified contaminants. Conditions of consent have been included at Annexure A to address the recommendations. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)

25. The provisions of s 2.48 of SEPP TI apply. The amended DA was referred to Ausgrid who raised no objections to the proposed development. I accept the parties’ agreement that the provisions of SEPP TI are satisfied.

Conclusion

26. 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.

27. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

28. 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.

Orders

29. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No DA2023/0276 (PAN-392711) pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $8,000.00. Payment is to be made within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to Development Application No DA2023/0276 (PAN-392711), for the demolition of existing buildings and construction of a new mixed-use development with 28 residential apartments, 1 commercial premises, basement parking and associated works at 15-25 Hilly Street, Mortlake (Lots 6 and 7 in DP18575, Lot 5 in DP 1161154, Lot 5 in DP1042975, Lot 5 in DP1098885 and Lot 1 in DP81918), subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 February 2025