St Hilliers Holding Pty Ltd v Cumberland Council

[2024] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:

St Hilliers Holding Pty Ltd v Cumberland Council [2024] NSWLEC 1354

Hearing dates:

Conciliation conference held on 12 June 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The cl 4.6 written request, prepared by Planning Ingenuity, dated 17 June 2024, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 and seeking a variation to the height of buildings development standard, pursuant to cl 4.3, is upheld.

(2)   The appeal is upheld.

(3)   Development Application DA 2023/0588, which seeks demolition of existing structures and construction of a 6-storey co-living housing development for 88 rooms, with basement car parking and landscaping at Lot 11 Deposited Plan (DP) 655964 and Lot 1 DP 1135754, also known as 98-100 St Hilliers Road, Auburn, is determined by the grant of consent, subject to the conditions in Annexure A.

(4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amended application in the agreed amount of $2,500.00 within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT APPLICATION – co-living housing development – 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, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2021, cll 2.3, 4.3, 4.6, 5.21, 6.1, 6.2

Environmental Planning and Assessment Regulation 2021, ss 23, 38

(State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.1

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122

Texts Cited:

Cumberland Development Control Plan 2021

Category:

Principal judgment

Parties:

St Hilliers Holding Pty Ltd (First Applicant)
JH Capital Auburn Pty Ltd (Second Applicant)
Cumberland Council (Respondent)

Representation:

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

Solicitors:
Mckees Legal Solutions (Applicants)
Cumberland Council (Respondent)

File Number(s):

2023/459725

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA 2023/0588 by Cumberland Council (the Council), which as amended, seeks demolition of existing structures and construction of a six-storey co-living housing development for 88 rooms, with basement car parking and landscaping at Lot 11 Deposited Plan (DP) 655964 and Lot 1 DP 1135754, also known as 98-100 St Hilliers Road, Auburn (the site).

Background

2. Development Application DA 2023/0588 (the DA) was lodged with Council on 28 September 2023. The original DA was notified to residents, with no submissions received. The DA was referred to Ausgrid, Transport for NSW (TfNSW), NSW Police and Sydney Water.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (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 commenced with a site view.

5. At the conciliation, the Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and the agreed conditions of consent, the parties reached 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 agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA 2023/0588, with conditions.

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, to grant consent to DA 2023/0588, 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. Cumberland Local Environmental Plan 2021 (CLEP):

1. Pursuant to cl 2.3 of the CLEP, the proposed residential development is situated over land zoned R4 High 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 CLEP, except there is a recognised breach in the cl 4.3 height development standard, that requires a cl 4.6 request for variation to be granted.

2. The development standard described in cl 4.3 of the CLEP requires a maximum building height of 18 m. The DA proposes a maximum height of 19.35 m, representing an exceedance of up to 7.5 %.

3. The DA relies on a cl 4.6 written request to vary the height of buildings development standard, pursuant to cl 4.6 of the CLEP.

4. The height breach relates to the roof form of the 6^th storey and lift overrun on the proposed building. The cl 4.6 written request provided to the Court explains that the portion of the building resulting in the non-compliance in the height standard does not result in a development that is incompatible with the desired, future character of the surrounding area, nor results in adverse amenity, including solar access and overshadowing to adjoining properties. 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, nor 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.

5. The Court must be satisfied to grant consent to the application that the cl 4.6 written request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the CLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request seeking a 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 (R4) described in cl 2.3 and the cl 4.3 height standard of the CLEP. 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.

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

7. The site is located within a flood planning area, as described in cl 5.21 of the CLEP. The DA relies on a Flood Study Report, prepared by JCO Consultants, dated 22 September 2023. The proposed development is assessed as sufficiently addressing the requirements of cl 5.21.

8. The proposed development seeks excavation for a basement and the site is located within an area mapped as having Class 5 Acid Sulfate Soils (ASS), pursuant to cl 6.1 of the CLEP. The DA relies on Geotechnical Report, prepared by Stantec, dated 15 June 2023. There is no ASS identified on the site and no predicted changes to soil stability and drainage patterns, therefore the requirements of cll 6.1 and 6.2 are sufficiently addressed.

2. State Environmental Planning Policy (Housing) 2021 (SEPP Housing):

1. The DA proposes a development for co-living that is permissible with consent, pursuant to s 67 of the SEPP Housing.

2. The minimum standards described in ss 68 and 69 of the SEPP Housing are sufficiently addressed by the design of the proposed development. Section 70 is also addressed.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the Sydney Harbour Catchment, pursuant to s 6.1 of the SEPP Biodiversity. The DA relies on stormwater management plans, prepared by JCO Consultants Pty Ltd, and dated 5 June 2024. The relevant requirements of the SEPP Biodiversity are addressed to protect the water and environment of the Sydney Harbour Catchment.

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

1. The site has frontage to a classified road, engaging s 2.119 of the SEPP Transport. The DA relies on an Acoustic Report, prepared by Acoustic Consulting Engineers, dated 1 March 2024 and proposed building design to address noise associated with the residential use of the development and proximity to a classified road.

2. The DA also relies on a Traffic Report, prepared by Genesis Traffic, dated 5 June 2024. The site only has frontage to the classified road and in consideration of the DA, TfNSW do not object. The DA by design and conditions of consent address the requirements of s 2.122 of the SEPP Transport.

5. 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. The DA relies on the Preliminary Site Investigation Report, prepared by Stantec, dated 15 June 2023. 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 of the SEPP Resilience.

6. Cumberland Development Control Plan 2021 (CDCP):

1. The original DA was publicly notified in accordance with the CDCP, with no submissions received.

2. The relevant requirements of the CDCP have been considered in 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 s 23 of the EPA Reg, the Court is satisfied with the provision of consent from the 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 DA.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA 2023/0588 should 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. Cumberland Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the Development Application DA 2023/0588 in accordance with the plans and documents listed below:

Reference/Dwg No	Title/Description	Prepared By	Date/s
004 Rev 11	Demolition Plan	Taxco Design	6 April 2024
005 Rev 11	Site Plan
006 REV 11	Streetscape Analysis
007 REV 11	Site Analysis
008 REV 11	GFA Calculations
010 REV 11	Landscape & Deep Soil Calculations
011 REV 11	CLA Calculations
012 REV 11	COS Calculations
013 REV 11	Shadow Diagrams
014 REV 11	Solar Access 3D
015 REV 11	Evacuation Plan
016 REV	Height Limit Diagram
101 Rev 11	Basement Plan
102 Rev 11	Ground Floor Plan
103 Rev 11	Level 01
104 Rev 11	Level 02
105 Rev 11	Level 03
106 Rev 11	Level 04
107 Rev 11	Level 05
108 Rev 11	Roof Plan
201 Rev 11	North & South Elevations
202 Rev 11	East & West Elevations
301 Rev 11	Sections S01
302 Rev 11	Sections S02
303 Rev 11	Ramp Section S03
401 Rev 11	External Windows & Door Schedule
402 Rev 11	North & South Material Schedule
403 Rev 11	East & West Material Schedule
404 Rev 11	Typical Kitchen Elevation
DA-SW100, Revision 4	Stormwater Layout Plan - Cover Sheet	JCO Consultants Pty Ltd	5 June 2024
DA-SW101, Revision 4	General Notes and Specifications
DA-SW200, Revision 4	Stormwater Concept Design - Basement Plan
DA-SW201, Revision 4	Stormwater Concept Design – Ground Floor
DA-SW202, Revision 4	Stormwater Concept Design – Roof Plan
DA-SW300, Revision 4	Stormwater Concept Design – Details Sheet – Sheet 1 of 2
DA-SW301, Revision 4	Stormwater Concept Design – Details Sheet – Sheet 2 of 2
DA-SW400, Revision 4	Stormwater Concept Design – OSD Catchment Plan
DA-SW600, Revision 4	Erosion and Sediment Control Plan & Details
01 Rev F	Hardscape Plan	Conzept Landscape Architects	11 June 2024
02 Rev F	Landscape Plan
03 Rev F	Planting Palettes
04 Rev F	Details 1
0 Rev F	Details 2
06 Rev F	Specifications
ID: 23140-01L-DD, Rev01	DA Acoustic Report	Acoustic Consulting Engineers	1 March 2024
Project No. PS199A	Substation Consultant Advice Note	Traca Engineering Group	7 June 2024
Reference No. 23054	Traffic Report	Genesis Traffic	5 June 2024
M230207	Clause 4.6 Variation Statement	Planning Ingenuity	17 June 2024

2. The applicant has filed the amendments to the Development Application DA 2023/0588 with the Court on 12 and 19 June 2024.

15. The Court orders that:

1. The cl 4.6 written request, prepared by Planning Ingenuity, dated 17 June 2024, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 and seeking a variation to the height of buildings development standard, pursuant to cl 4.3, is upheld.

2. The appeal is upheld.

3. Development Application DA 2023/0588, which seeks demolition of existing structures and construction of a 6-storey co-living housing development for 88 rooms, with basement car parking and landscaping on Lot 11 Deposited Plan (DP) 655964 and Lot 1 DP 1135754, also known as 98-100 St Hilliers Road, Auburn, is determined by the grant of consent, subject to the conditions in Annexure A.

4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amended application in the agreed amount of $2,500.00 within 28 days of the date of these orders.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 25 June 2024