St Enid Holdings Pty Ltd v Cumberland Council

[2023] NSWLEC 1663

Land and Environment Court

New South Wales

Medium Neutral Citation:

St Enid Holdings Pty Ltd v Cumberland Council [2023] NSWLEC 1663

Hearing dates:

Conciliation Conference 25 October 2023

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) The applicant’s written request pursuant to cl 4.6 of Cumberland Local Environmental Plan 2021 seeking a variation to the development standard for height of buildings set out in cl 4.3 of Cumberland Local Environmental Plan 2021 prepared by Planning Ingenuity dated 25 October 2023 is upheld.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $1,500.00 within 28 days.

(4)   Development Application DA2023/0317 for demolition of existing structures and construction of a co-living housing building containing 49 rooms on land legally comprising of the allotment described as Lots A and B DP 342775, known as 31-33 Enid Avenue, Granville is determined by the granting of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – co-living housing – conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 6.5, 6.6, 6.7, ch 6

Cumberland Local Environmental Plan 2021, cll 2.5, 2.7, 4.3, 4.4, 4.6, 5.1, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.9, 6.14, 6.16, sch 5

State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69, 70

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

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, ‘Floodplain Development Manual’, April 2005

Category:

Principal judgment

Parties:

St Enid Holdings Pty Ltd ACN 662 182 210 (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor)(Applicant)
C McFadzean (Respondent)

Solicitors:
McKee’s Legal Solutions (Applicant)
Cumberland Council (Respondent)

File Number(s):

2023/255953

Publication restriction:

No

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 refusal of development application No DA2023/0317 for demolition of existing structures, construction of a 6-storey co-living housing development comprising 49 private rooms, four communal rooms, one level of basement and related landscaping (the Proposed Development) at 31-33 Enid Avenue, Granville legally described as Lots A and B in DP342775 (the Site).

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 has been held on 25 October 2023. I presided over the conciliation conference.

3. 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 and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. 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 to be cl 4.6 of the Cumberland Local Environmental Plan 2021 (CLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The development application was notified by Council between 8 June 2023 and 22 June 2023. No submissions were received by the respondent Council.

8. The development application was made with the written consent of the owner of the subject site, in accordance with the requirements of the Environmental Planning & Assessment Regulation 2021 (EPA Regulation).

9. The Site is within the R4 High Density Residential zone pursuant to the Cumberland Local Environmental Plan 2021. Within the R4 zone, residential flat buildings and shop top housing are permitted and as a result, co-living housing is permissible with consent pursuant to s 67 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

10. The SEPP Housing provides a number of minimum standards in s 68 that cannot be used to refuse consent. The Applicant’s calculations extracted from the Statement of Environmental Effects and architectural drawings and the Council’s calculations for those standards are as follows:

Element	Standard	Applicant’s Calculation / Position	Council’s Calculation / Position	Compliance
Floor space ratio	1.87:1	1.87:1	1.87:1	Yes
Communal living area	116m2 with a 3m minimum dimension	117.3m2 all at >3m	117.3m2 all at >3m	Yes
Communal open space	161m2 with a 3m minimum dimension	161.9m2 all >3m	Ground - 96m2 Rooftop - 138m2 Total - 234m2 at >3m	Yes
Parking	10 spaces	10 spaces	10 spaces	Yes
Landscaping	7% at 3m wide as per the Cumberland DCP which incorporates ADG requirements	28.3%	14.6%	Yes

11. The SEPP Housing provides development standards listed in s 69(1) for co-living housing developments. The Applicant’s calculations extracted from the Statement of Environmental Effects and architectural drawings and the respondent’s calculations for those standards are as follows:

Element	Standard	Applicant’s Calculation / Position	Council’s Calculation / Position	Compliance
Room size excluding kitchen and bathroom (all double rooms)	16m2 to 25m2	16.14m2 – 21.43m2	16.14m2 – 21.43m2	Yes
Lot size	800m2 minimum	805m2	805m2	Yes
Workspace for manager	Provided within the communal living area or in a separate space	Provided within the ground floor communal living room	Provided within the ground floor communal living room	Yes
Facilities	Adequate bathroom, laundry and kitchen facilities will be available for the use of each occupant	Bathroom and kitchen facilities are provided within each private room. Adequate space available for a washing machine and dyer / internal line	Adequate bathroom, kitchen, washing and drying facilities are provided in each private room.	Yes
Maximum occupants	2 per room	2	2	Yes
Bicycle and motor bike parking	Provide adequate number of parking spaces	Adequate – 17 bicycle and 10 motor bike spaces	Adequate - 17 bicycle and 10 motor bike spaces	Yes

12. The parties have considered the matters specified in s 69(2) of the SEPP Housing. Those matters and the parties’ position are addressed in the table below:

Element	Consideration	Comment
Setbacks	Front - No less than 6m or correspond with prevalent setback or emerging setbacks in transition areas Secondary street – 4m minimum Side – 3m minimum Rear first 4 storeys – 6m Rear 5th and 6th storeys - 7.22m	The western side boundary complies. Front, secondary street and rear setbacks are satisfactory on merit.
Building Separation	Habitable up to 4 storeys – 6m Habitable above 4 storeys – 9m	South - habitable Up to 4 storeys – 5.31m Above 4 storeys – 5.31m West - habitable Up to 4 storeys – 4m Above 4 storeys – 4m Given the separation to the existing development to the rear and therefore total building separation of 12 to 12.5m the consent authority can be satisfied that the building separation of the proposed development meet the objective of this section and are acceptable.
Solar access	3 hours direct solar access between 9am to 3pm at mid-winter to at least 1 communal living area	>3 hours achieved for all communal living areas.
Building design	Compatible with the desired future character of the precinct	Not compatible.

13. No subdivision of the rooms into separate lots is proposed, consistent with the restriction imposed by s 70 of the SEPP Housing.

14. As the Site is within the Sydney Harbour Catchment area, the provisions of ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) apply to the Proposed Development.

15. 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, SEPP B&C).

16. In relation to the matters for consideration listed in s.6.6(1) of the SEPP B&C, the parties consider that:

1. subsection (a) does not apply by virtue of s 6.6(3).

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

3. the development will not increase the amount of stormwater run-off from the site during peak events due to on site detention measures.

4. the development does not require 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. the development makes adequate provision to protect the quality and quantity of groundwater.

17. The Court is satisfied pursuant to s 6.6 of the SEPP B&C that the Proposed Development ensures that the impact on water flow in a natural waterbody will be minimised because the negligible and satisfactory water flow impacts for a natural waterbody. In relation to subs (2)(a) the Supplementary Statement of Environmental Effects filed 25 October 2023 provides as follows:

“The closest water body to the Site is Duck Creek. Whilst this is approximately 50m to the south of the Site, the exact location for connection with “council’s stormwater infrastructure” is unknown. Cl 6.6(2)(a) of the B&C SEPP details that the quality of water will be “as close as possible to neutral or beneficial”. It is considered the draining of the OSD water via the Council Stormwater System coupled with the water sensitive urban design measures (condition 39) will be as close as possible to neutral or beneficial thereby satisfying the jurisdictional requirement.”

18. In relation to s 6.7(1) of the SEPP B&C considerations, the parties consider that:

“(a)     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.

(b)     the development does not involve the clearing of riparian vegetation.

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

(d)     the development will not have an adverse impact on wetlands.

(e)     the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures.

(f)     the development does not adjoin a natural waterbody.

a) In relation to s 6.7(2) criteria, the parties are satisfied that:

(a)     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,

(b)     the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

(c)     an approval under the Water Management Act 2000 and a permit under the Fisheries Management Act 1994 are not required,

(d)     the land does not abut a natural waterbody.

(e)     there will be no adverse impact on wetlands.

b) In relation to s 6.8(1) considerations, the parties consider that the development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems.

c) In relation to s 6.9(1) considerations, the parties consider is that:

(a)    the development will have a minor and satisfactory impact on recreational land uses in the Sydney Harbour catchment.

(b)     the development has no impact on public access to and around foreshores.

d) In relation to s 6.9(2) criteria, the parties are satisfied that:

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

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

(c)     the land does not form part of a foreshore of a natural waterbody.

e) In relation to s 6.10, the parties’ position is that the development will not have an adverse environmental impact for adjacent and downstream local government areas.

f) In relation to s 6.11, no definition of ‘natural waterbody’ is included under the SEPP or the Act. Even if the land is within 100m of a natural waterbody, the development is not dependent upon natural waterbody water within it and there will be no conflicts.

g) The site is not within a riverine scenic area (s 6.12), a Hawkesbury-Nepean conservation area sub-catchment (s 6.13) and the Sydney Drinking Water Catchment (s 6.60) and does not involve temporary use of land (s 6.14).”

19. A preliminary site investigation report (PSI Report) prepared by Cardno dated 1 December 2022 is included with the Class 1 Application filed on 11 August 2023, under tab 11. The PSI Report concludes that it is unlikely that contaminants or potential contaminants of concern are present at concentrations that represent a risk to user of the site or that constrain the intended redevelopment. Accordingly, I am satisfied that s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 is satisfied regarding consideration of whether the land is contaminated.

20. Demolition is permissible pursuant to cl 2.7 of the CLEP.

21. The Proposed Development contravenes the 20m maximum height of buildings development standard pursuant to cl 4.3 of the CLEP and the Applicant relies on a written request pursuant to cl 4.6 of the CLEP (Written Request) to justify that contravention.

22. I have considered the Written Request prepared by Planning Ingenuity dated 25 October 2023. The Proposed Development contravenes the development standard at 22.7m limited to the area of the lift overrun as depicted in the following image:

23. The Written Request provides a detailed assessment of the terms of cl 4.6 and whether compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, whether there are sufficient planning grounds to justify the contravening of the development standard and public interest, concluding that:

“Having regard to all of the above, it is our opinion that compliance with the maximum height development standard is unreasonable and unnecessary in the circumstances of this case as the development meets the objectives of that standard and the zone objectives. The proposal has also demonstrated sufficient environmental planning grounds to support the breach.”

24. The Court is satisfied that the Written Request seeking to justify the contravention of the development standard in cl 4.3 of the CLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of CLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

25. The relevant zone objective in the R4 zone 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.

26. The Court would be satisfied that the proposed development is compatible with the zone objectives by providing for the housing needs of the community within the zone.

27. A maximum Floor Space Ratio (FSR) of 1.7:1 applies to the Site pursuant to cl 4.4 of the CLEP. However, that is subject to a 10% bonus under s 68(2)(a) of the SEPP Housing. That results in a maximum permissible FSR of 1.87:1. The Proposed Development, as amended, has a compliant FSR of 1.87:1 (Architectural Plans, Revision C, drawing A009).

28. The Site does not contain a heritage item and is not within a heritage conservation area. The Site is diagonally opposite Granville Memorial Park, which contains item I70 being the Granville Swimming Pool and item I71 being the Granville War Memorial, both of which are listed under sch 5 of the CLEP as being items of local significance. I am satisfied that development consent is not required under cl 5.10 of the CLEP, however subcl (5)(c) provides that before granting consent to any development on land that is within the vicinity of land in which a heritage item is located, a heritage management document may be required to assess the extent to which the carrying out of the Proposed Development would affect the heritage significance of the nearby item. The parties note that the visual separation from the items I70 and I71 ensures a negligible impact that does not warrant the provision of a heritage management document. In this regard, it is noted that the war memorial presents to Memorial Drive and is not visible from the Site. The pool has what amounts to a rear frontage to Diamond Avenue east of the intersection with Enid Avenue and likewise is sufficiently visually remote so as to negate any adverse impact from the Proposed Development.

29. Clause 5.21 of the CLEP relates to Flood Planning and draws upon the Floodplain Development Manual (the Manual) for the definition of a flood planning area. The Manual defines flood planning area to be an area of land below the flood planning level. The flood planning level is further defined to mean the combinations of flood levels (derived from significant flood events or floods of specific annual exceedance probability) and freeboards selected for floodplain risk management purposes. Council’s flood mapping, as extracted below at Fig 1, identifies the 1% floodway (shown red) following Duck Creek. The edge of the Site along its Enid Avenue frontage is shown grey as being within the flood planning level. The Site is not mapped as forming part of the flood storage area (shown yellow) or flood fringe area (shown green).

Fig 1: Council’s flood mapping

30. In relation to cl 5.21(2) of the CLEP, the consent authority can be satisfied that the proposed development:

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

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;

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;

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

5. subject to conditions for sediment and erosion control measures during demolition and construction works, 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.

31. The Site is not marked on the following maps pursuant to the CLEP:

1. Additional permitted Uses map (cl 2.5);

2. Land Reservation Acquisition map (cl 5.1);

3. Foreshore Building Line map (cl 6.3);

4. Biodiversity map (cl 6.5);

5. Riparian Lands and Watercourses map (cl 6.6);

6. Salinity map (cl 6.9);

7. Design Excellence map (cl 6.14); or

8. Key Sites map (cl 6.16).

32. The Site is both class 4 and 5 land on the Acid Sulfate Soils map of the CLEP. Development consent is required under cl 6.1(2) of the CLEP as the Proposed Development involves works more than 2m below the natural ground surface within the class 4 land. However, subcl (2) is to be read in conjunction with subcl (4) which provides that consent is not required under cl 6.1 if:

(a)    a preliminary assessment of the works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and

(b)     the preliminary assessment has been provided to the consent authority, and

(c)     the consent authority has confirmed the assessment by written notice to the person proposing to carry out the works.

33. The Applicant relies on “Proposed Residential Redevelopment Geotechnical Investigation Report” prepared by Cardno, now Stantec, dated 15 November 2022, filed with the Class 1 Application at Tab 16, incorporating a preliminary assessment in accordance with the manual. That assessment indicates, at part 3.5, that an acid sulfate soils management plan is not required for this development.

34. Development consent is required for the proposed earthworks under cl 6.2 of the CLEP and the parties have considered the matters listed at cl 6.2(3) of the CLEP.

35. Clause 6.4 of the CLEP requires the consent authority to be satisfied that various essential services are available or that adequate arrangements have been made to make them available. Services are available or adequate arrangements can be made to make available each of water supply, electricity supply, stormwater drainage, sewage disposal and road access. The amended architectural plans Revision C at Drawing A102 shows the proposed location of a padmount substation, should one be required.

36. Finally, in relation to stormwater management, the Court is satisfied pursuant to cl 6.7(2) of the CLEP that:

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

2. An onsite stormwater retention system has been provided.

3. The stormwater concept plans have been amended to provide for a swale along the western boundary to manage overland flow on adjoining properties.

37. For these reasons 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.

38. 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.

Notations:

39. The Court notes that:

1. Cumberland Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA Number DA2023/0317 in accordance with the plans and documents listed below:

Reference/Dwg No	Title/Description	Prepared By	Date/s
A005 Rev A	Demolition Plan	Texco Design	21 February 2023
A006 Rev B	Site Plan		18 October 2023
A101 Rev B	Basement Plan
A102 Rev C	Ground Floor Plan		24 October 2023
A103 Rev C	Level 01
A104 Rev C	Level 02
A105 Rev C	Level 03
A106 Rev C	Level 04
A107 Rev C	Level 05
A108 Rev C	Roof Terrace
A109 Rev C	Lift Overrun
A201 Rev B	North Elevation		18 October 2023
A202 Rev B	South Elevation
A203 Rev C	East & West Elevations		24 October 2023
A301 Rev B	Sections A-A		18 October 2023
A302 Rev C	Sections B-B		24 October 2023
A303 Rev B	Ramp Section		18 October 2023
A401 Rev B	Material Schedule
A404 Rev A	Typical Kitchen Elevation		21 February 2023
Job No. 20220198, Drawing No. DA-SW100, Revision 3	Stormwater Layout Plan - Cover Sheet	JCO Consultants Pty Ltd	10 October 2023
Job No. 20220198, Drawing No. DA-SW101, Revision 3	Stormwater Layout Plan - Basement Level General Notes and Specifications
Job No. 20220198, Drawing No. DA-SW200, Revision 3	Stormwater Concept Design - Basement Plan
Job No. 20220198, Drawing No. DA-SW201, Revision 3	Stormwater Concept Design – Ground Floor
Job No. 20220198, Drawing No. DA-SW300, Revision 3	Stormwater Concept Design – Details Sheet – Sheet 1 of 2
Job No. 20220198, Drawing No. DA-SW301, Revision 3	Stormwater Concept Design – Details Sheet – Sheet 2 of 2
Job No. 20220198, Drawing No. DA-SW400, Revision 3	Stormwater Concept Design – OSD Catchment Plan
Job No. 20220198, Drawing No. DA-SW600, Revision 3	Erosion and Sediment Control Plan & Details
Job No. 20220198, Drawing No. DA-SW700, Revision 3	Stormwater Concept Design – Upstream Catchment Plan
LPDA 23 – 185 / 1	Hardscape Plan	Conzept Landscape Architects	24 October 2023
LPDA 23 – 185 / 2	Landscape Plan - GF
LPDA 23 – 185 / 3	Landscape Plan - Roof
LPDA 23 – 185 / 4	Details 1
LPDA 23 – 185 / 5	Details 2
LPDA 23 – 185 / 6	Specifications
ID: 12461 R01v1	DA Acoustic Report	PRA Acoustic Consulting	20 October 2023
Clause 4.6 Variation Height of Buildings (Clause 4.6)	Planning Ingenuity	25 October 2023
Supplementary SEE	Planning Ingenuity	25 October 2023

2. The applicant filed the amended application with the Court on 25 October 2023.

Orders:

40. The Court orders:

1. The appeal is upheld.

2. The applicant’s written request pursuant to cl 4.6 of Cumberland Local Environmental Plan 2021 seeking a variation to the development standard for height of buildings set out in cl 4.3 of Cumberland Local Environmental Plan 2021 prepared by Planning Ingenuity dated 25 October 2023 is upheld.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $1,500.00 within 28 days.

4. Development Application DA2023/0317 for demolition of existing structures and construction of a co-living housing building containing 49 rooms on land legally comprising of the allotment described as Lots A and B DP 342775, known as 31-33 Enid Avenue, Granville is determined by the granting of consent subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 08 November 2023