Tier Architects Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 1412

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tier Architects Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1412

Hearing dates:

Conciliation Conference on 25 August 2020.

Date of orders:

7 September 2020

Decision date:

07 September 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

(2) Pursuant to s8.15(3) of the Environmental Planning and Assessment Act, the applicant is to pay the respondent’s s8.15(3) costs thrown away in the agreed amount of $10,000 within 21 days of the date of these orders.

(3) The appeal is upheld.

(4) Development application DA-16/0388 seeking consent for a staged Masterplan application and stage 1 consent which includes site planning, site works including cut and fill and engineering works with resultant site RLs building envelopes and building heights, gross floor area, road and infrastructure works, greenweb creation/restoration with public positive covenant and open space is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – concept development application – residential apartment development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 19179

State Environmental Planning Policy No 55 – Remediation of Land

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

Sutherland Shire Local Environmental Plan 2015

Texts Cited:

Apartment Design Guide

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Tier Architects Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/51574

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal relates to a large parcel of land fronting Willarong Road in Caringbah that is the subject of an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) after the refusal by the Sutherland Shire Planning Panel on behalf of Sutherland Shire Council (the Respondent) of Development Application DA16/0388 seeking consent for a staged masterplan that includes site planning, site works including cut and fill and engineering works with resultant site levels, building envelopes and building heights, gross floor area, road and infrastructure works and open space on Lot 102 in DP 868930 (the site).

2. The Development Application also seeks concurrent approval for the detailed Stage 1 works which include:

• Site consolidation and subdivision and establishment of easements;

• Extensive site works;

• Construction of four to seven-storey residential flat buildings containing 122 apartments and three levels of basement car parking;

• Tree removal/impact site works;

• Construction of Communal Open Space, at ground level and within three separate rooftop terraces;

• Construction of new access roads (Roads 1, 2 and 3) within the Masterplan site to allow for access throughout the site;

• Signalisation of intersections at Willarong Road and Captain Cook Drive and Willarong Road and the Kingsway; and

• Construction of onsite detention beneath Roads 2 and 3.

3. The application as described in [1] and [2] comprises the proposed development to which s 4.22 of the EPA Act applies by virtue of the Applicant nominating the masterplan works, at [1], as a concept development application (the Masterplan), and consent being sought for stage 1 works (the Development Application), as described at [2] and as shown in Figure 1.

Figure 1 - Staging plan

4. On 7 May 2020, the Court granted the Applicant leave to amend the application and rely upon amended plans and other documents that were subsequently re-notified to residents by the Respondent between 26 May 2020 and 17 June 2020.

5. It is relevant to record at the outset that, in accordance with its usual practice at the time, 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 15 October 2019 and at which I presided.

6. Prior to the commencement of the conciliation conference, I attended the onsite view at which a number of public submissions were heard. In the company of the parties and the experts, I was also taken to the rear of the site where what is known as “Area 5” and “Area 5A” adjoin.

7. Following the onsite view, the parties continued conciliation discussions. However, as resolution was not reached, the conciliation conference was terminated, and the matter was subsequently listed for hearing and the parties consented to me hearing the matter.

8. On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website. Consistent with the Pandemic Policy, the Court arranged for a conciliation conference pursuant to s34C of the LEC Act that was directed, with consent of the parties, to be conducted via MS Teams.

9. Prior to the conciliation conference, the Applicant served amended plans and other documents that resulted in agreement being reached between the parties at the conciliation conference in accordance with s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 25 August 2020.

10. The parties ask me to approve their decision as set out in the s34 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 s34 agreement.

11. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [51].

12. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that I will now set out.

13. The site is located within the R4 High Density Residential zone identified in the Sutherland Shire Local Environmental Plan 2015 (SSLEP), in which residential flat buildings, Community facilities and roads are permitted with consent and wherein development is consistent with the objectives of the zone that are in the following terms:

•  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 encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.

•  To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.

•  To minimise the fragmentation of land that would prevent the achievement of high density residential development.

14. The floor space ratio (FSR) applicable to the site is found at cl 4.4(2) of the SSLEP to be expressed as 1.2:1. However, subcl 4.4(2A) of the SSLEP also applies and provides relevantly:

(2A) Despite subclause (2), the floor space ratio for the following buildings may exceed the maximum floor space ratio shown for the land on the Floor Space Ratio Map by up to the amount specified below, but only in the circumstances so specified—

(a) a building on land identified as “Area 5” on the Floor Space Ratio Map may exceed the floor space ratio by up to 0.3:1 if the development incorporates vehicular access to all lots identified as “Area 5A” on the Floor Space Ratio Map,

…

15. The subject site is identified on the FSR map at subcl 4.4(2) as “Area 5”. The Lots forming “Area 5A” front Taren Point Road or The Kingsway.

16. The effect of cl 4.4(2A)(a) is that, should vehicular access be provided to the Lots in “Area 5A”, the FSR applicable to the site is 1.5:1.

17. The proposed development incorporates a right of carriageway on the subject site in favour of the Lots in “Area 5A” but does not provide physical access to all the Lots as shown in Figure 2.

Figure 2 - means of vehicular access proposed

18. While the Applicant considers the provision of vehicular access at cl 4.4(2A)(a) to be satisfied, it relies upon a written request prepared by Planning Ingenuity dated 25 August 2020 in accordance with cl 4.6 of the SSLEP to the effect that the FSR of 1.2:1, allowable without the bonus contained in subcl 4.4(2A)(a), is contravened, and is justified.

The Applicant’s written request to contravene the FSR standard is considered

19. The proposed development, comprising the Masterplan and the development application, results in an FSR of 1.38:1, which exceeds the FSR allowable in cl 4.4 of the SSLEP by 20%.

20. The objectives of the FSR development standard are in the following terms:

(1)  The objectives of this clause are as follows—

(a)  to ensure that development is in keeping with the characteristics of the site and the local area,

(b)  to ensure that the bulk and scale of new buildings is compatible with the context of the locality,

(c)  to control development density and intensity of land use, taking into account—

(i)  the environmental constraints and values of the site, and

(ii)  the amenity of adjoining land and the public domain, and

(iii)  the availability of infrastructure to service the site, and

(iv)  the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and

(v)  the desirability of retaining the scenic, visual, and landscape qualities of the area.

21. The Applicant considers strict compliance with the FSR development standard to be unnecessary or unreasonable as the proposed development is consistent with the objectives of the standard and of the R4 zone, without adverse impacts arising from the non-compliance and because planning goals are better achieved by the approval of the variation to the standard.

22. The written request sets out the following grounds as to why strict compliance with the FSR development standard is unnecessary or unreasonable, when considered against the objectives of the standard, at [20]:

1. In respect of objective (a) and (b) of the development standard:

• Firstly, the character of the area is said to be in flux following the adoption of the SSLEP 2015. In particular, the up-zoning of the area from low density to high density residential is a significant change that has resulted in a number of residential flat buildings and boarding houses being approved and constructed.

• Secondly, the subject site is a large parcel of land located close to the Caringbah Town Centre and is central in the precinct the subject of the R4 zone, and with a permissible height of 30m which equates to 9-10 storeys in height.

• Thirdly, despite the exceedance of the FSR on the site, the proposed development exceeds the minimum landscaped area of 30% required by the SSLEP.

• Fourthly, the residential apartment development the subject of the development application creates a transition between the Lots in “Area 5A” and the central development anticipated by the Masterplan.

• Fifthly, the development proposed by the Masterplan complies with the building separation distances required by the Apartment Design Guide (ADG), and achieves the communal open space and deep soil landscaping required by the ADG.

• Sixthly and finally, achieving the development as described above is consistent with the strategy set out for the Caringbah North Residential Flat Precinct, in Chapter 7 of the Sutherland Shire Development Control Plan 2015 (SSDCP) as follows:

“The vision for the precinct is to create an exemplary medium to high rise residential community close to the centre, schools and hospital, which emphasises the Sutherland Shire’s unique ecology with good indigenous landscaping and pleasant spaces between buildings. The combination of high amenity units, indigenous landscaping and access to services will combine to make the precinct a great place to live.

The area will be developed with well-designed residential flats alongside other multi-dwelling developments. The precinct will have a different amenity for residents than Caringbah centre being less urban and set in a landscaped context. The aim is to develop flats where all residents have adequate privacy, good light and natural ventilation, attractive outlooks, and good quality landscaped private and shared open space between buildings. To allow for adequate solar access and privacy for future residents, building separation distances which increase with increased building height are required. The building envelope plan for the precinct, and many of the design criteria for residential flat development, are based on the guidelines in the Apartment Design Guide 2015 (ADG) which supports SEPP 65 – Design Quality of Residential Flat Development.”

2. In respect of objective (c) of the development standard:

• Firstly, the proposed development retains existing trees to the south of the site as desired by the SSDCP, and introduces substantial areas of landscaping across the site in lieu of the existing hardstand surfaces that will, in combination with stormwater harvesting, improve biodiversity outcomes.

• Secondly, the site is relatively free of environmental constraints with largely flat topography that permits the proposed development to comply with setbacks, building separation distances and building heights, to the south of the site, without excessive overshadowing of properties to the south. Where view loss is likely to result, it is within expected limits given the built form anticipated by the controls and is typical of development in a high density residential environment.

• Thirdly, the site is serviced by the required infrastructure, including gas, electricity and water. Changes proposed to the local road network are, for the reasons set out on p 10 of the written request, likely to produce fewer vehicle movements on to Willarong Road that Council would have anticipated prior to the upzoning of the precinct, and the proposed development has received in-principle approval of the Roads and Maritime Services.

23. Next, the written request considers, in addition to the reasons set out at [22], the following to be sufficient environmental planning grounds to justify the contravention:

• Firstly, the form of high density residential development proposed is consistent with the form of development intended for the precinct and should be allowed despite the fact that physical vehicular access is not provided to the Lots in “Area 5A”.

• Secondly, the proposed development incorporates substantial areas of deep soil landscaping and a ‘green link’ through the site which retains trees and creates a habitat link as anticipated by the SSDCP.

• Thirdly, due to the concurrent rezoning in the precinct, Lots in “Area 5A” have, because of the smaller scale of development proposed, progressed in advance of the subject site.

• There are social benefits and a public interest in providing the residential development proposed in such a highly sought after area that should not be denied because of the exceedance of the standard.

24. I am satisfied that the written request adequately addresses the matters required to be addressed by cl 4.6(4)(a)(i) of the SSLEP. In particular, I note the achieving of a high density residential development envisaged for the precinct integrates large areas of open green space that exceeds the minimum required and transitions in form from “Area 5A” with the result being a compatibility with a local context that is, itself, in transition.

25. Next I must be directly satisfied that the proposed development is in the public interest for the reasons set out at [22], and because of its consistency with the objectives of the R4 zone which are at [20]. The reasons set out in the written request may be summarised as follows:

1. The proposed development assists in providing for the housing needs of the community and does so by providing a variety of dwelling types and orientations within a high density residential environment, including 20% of dwellings being adaptable and 20% being visitable dwellings to accommodate the elderly and those with a disability.

2. A café proposed for Stage 2, and a range of communal spaces, will assist in meeting the day to day needs of residents.

3. The proposed development demonstrates a high standard of design and amenity through its compliance with the ADG in a manner that has retained existing native canopy trees and provides common open space and without hindering development on adjoining land as envisaged in the R4 zone.

26. In forming my opinion of satisfaction in accordance with cl 4.6(4)(a)(ii), I note that the proposed development has made a form of provision for vehicular access to Lots in “Area 5A” by providing internal road access and soft landscaping within a right of carriageway that permits physical access to the Lots in “Area 5A” in the event that an owner of those Lots chooses to do so.

27. Furthermore, I accept there is a degree of difficulty in giving effect to the provision at cl 4.4(2A)(a) if it is ‘physical access’ that is required by the provision. While I do not read it that way, I am nevertheless satisfied that the written request has demonstrated that the exceedance of the FSR permitted by cl 4.4(2) of the SSLEP is in the public interest for the reasons set out above, and for the reasons that follow:

1. Firstly, the development the subject of the development application demonstrates a transition in scale between the Lots in “Area 5A” and the taller development anticipated by the Masterplan, which is located centrally in the subject site.

2. Secondly, the ‘green web’ promoted by the SSDCP is located to retain existing trees and, when read with the landscape plan is, in my view, likely to preserve and enhance the visual, scenic and landscape qualities of the area and result in a landscape setting that is compatible with natural features and which, relevantly, exceeds the minimum landscape area control of 30%.

3. Thirdly, I consider the widespread compliance with the provisions of the ADG as demonstrated in the proposed development to be indicia of a high standard of urban design and residential amenity sought by the objectives of the standard.

28. While I am satisfied in respect of cl 4.6 (4)(a)(ii) of the SSLEP, I note that the concurrence of the Secretary has not been obtained in this matter. Nonetheless, the Court has the power to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of the SSLEP.

29. I also have considered the matters in subcll 4.6 (5)(a), (b) and (c) including whether any matter of significance for State or regional environmental planning is raised, and the public benefit of maintaining the standard and have decided that in the circumstances of this case for the reasons outlined above that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the circumstances of this case.

28. For the reasons set out above, I am satisfied that the written request prepared in accordance with cl 4.6 of the SSLEP is well founded and should be upheld.

The Applicant’s written request to contravene the height of buildings standard is considered

31. The proposed development exceeds the height of buildings development standard at cl 4.3 of the SSLEP on similar grounds as those set out at [14]. That is, the maximum height of buildings permitted by subcl 4.3 of the SSLEP is amended by the provision at subcl 4.3(2E)(e) as follows:

(e)  a building on land identified as “Area 5” on the Height of Buildings Map may exceed that height by 14 metres if the development will incorporate vehicular access to all lots identified as “Area 5A” on the Height of Buildings Map,

32. While the Applicant maintains that the provision for vehicular access to those Lots in “Area 5A” from the subject site is achieved, a written request to contravene the development standard at cl 4.3 of the SSLEP was prepared by Planning Ingenuity dated 25 August 2020 in accordance with cl 4.6 of the SSLEP.

33. The exceedance of height by buildings shown in the Masterplan and the development application is identified on Table 1 (p15) of the written request. The exceedance is expressed in two ways:

• The extent of variation to the 16m height of buildings limits (cl 4.3(2)), and;

• The extent of variation to the 30m bonus height of buildings limit (cl 4.3(2E)(e)).

34. The Masterplan includes a maximum building height of 37.05m (Stage 3, Building E) being an exceedance of 21.05m from the maximum height of building allowed by cl 4.3(2) of the SSLEP and an exceedance of 7.05m in respect of cl 4.3(2E)(e).

35. The objectives of the height of buildings development standard at cl 4.3(1) of the SSLEP are in the following relevant terms:

(a)  to ensure that the scale of buildings—

(i)  is compatible with adjoining development, and

(ii)  is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

(iii)  complements any natural landscape setting of the buildings,

(b)  to allow reasonable daylight access to all buildings and the public domain,

(c)  to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

…

36. The exceedance of the development standard by the development the subject of the development application is expressed as 7.31m in respect of cl 4.3(2) of the SSLEP and a height that is compliant in respect of cl 4.3(2E)(e) of the SSLEP, or within the 30m height limit permitted by cl 4.3(2E)(e) of SSLEP.

37. The written request sets out the following grounds as to why strict compliance with the FSR development standard is unnecessary or unreasonable, when considered against the objectives of the standard, at [35]:

1. In respect of objective (a)(i) and (ii) of the development standard:

• Firstly, the requirement of these objectives is for compatibility with adjoining development, which is different to sameness, and consistency with the local character which is in flux since the adoption of the SSLEP 2015 and recent approvals for 5-storey residential flat buildings in the formerly low density residential area demonstrate the extent of change anticipated in the Caringbah North Precinct (as defined in the SSDCP).

• Secondly, the tallest buildings proposed by the Masterplan are located centrally on the site and transition down to the lower 3- and 4-storey buildings to the adjoining properties to the south and the existing or likely future 5-storey buildings to the west of the subject site. Buildings proposed to front Willarong Road are consistent with the evolving streetscape set by a height control of 16m.

• Thirdly, all the buildings proposed by the Masterplan achieve or exceed the building separation required by the ADG and, when viewed from outside the site, create an appropriate transition in height and scale.

• Fourthly, the arrangement of buildings, and the separation between, allows substantial areas of deep soil landscaping adjacent to the site edges generally, and to the western boundary in particular where provision is made for vehicular access to the Lots in “Area 5A”, as stated at [15]-[17].

2. In respect of objective (a)(iii) of the development standard:

• The site has been cleared of its former high school buildings and the proposed development complies with Chapter 7, Part 8.2 (Landscape Design) of the SSDCP in retaining the existing large trees that complement the proposed height of buildings in the Masterplan.

• The retained trees measure heights ranging between 18m and 24m to the southern boundary, complementing the proposed buildings in the vicinity that measure 13m-22m in height.

• The retained trees to Willarong Road measure heights ranging between 8m-16m, and proposed built form of 5-storeys in the vicinity.

3. In respect of objective (b), (c) and (d) of the development standard, which seek to control amenity related impacts:

• Firstly, the arrangement of the proposed buildings on the site comply with separation distances required by the ADG, achieve communal open space and deep soil landscaping.

• Secondly, the height variation does not result in a form of development on the site that is larger than anticipated by the controls or inconsistent with the desired future character of the precinct.

• Thirdly, the form of development will have minimal overshadowing impacts on properties located to the west or east of the subject site, and privacy impacts are within those expected by the built form anticipated for the site.

• Fourthly, where view loss occurs it is limited to upper level units at 131-135 Willarong Road (the adjoining units) which currently benefit from views of the city CBD, and water in Botany Bay. The units experiencing view loss are located at RL44.70 having an eye height of RL46.2. Views across the subject site to the north would be obstructed by the proposed development even without the bonus height applied. In other words, a complying development at 16m in height would result in the same or similar view loss as that likely to result from that proposed, as depicted in the figure re-produced below.

Figure 3 - view loss analysis

• Additionally, some view loss from the adjoining units is inevitable for reasons unrelated to the proposed development arising from the approval of DA15/1452 on the eastern side of Willarong Road which has been approved at a height of RL47.10, or 900mm above the eyeline of the adjoining units.

• Finally, apartments proposed in the Masterplan to be the subject of later development applications are, where possible, oriented away so as not to overlook neighbouring properties such as the adjoining units.

38. Next, the written request sets out the environmental planning grounds to justify the contravention of the provisions of cl 4.3 of the SSLEP as follows:

1. Firstly, the development is consistent with the objectives of the development standard and of the zone, does not impose adverse impacts on adjoining properties arising from the non-compliance, and achieves important planning goals as a result of the non-compliance.

2. Secondly, despite the exceedance in height, the proposed development achieves the aims of the SSDCP and State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) because it provides socially and environmentally sustainable housing, variation in building height that is commonly accepted as a positive approach to urban design and provides affordable housing that is well-located and compact.

3. Thirdly, for similar reasons as are set out at [18], a form of vehicular access to Lots in “Area 5A” has been provided and given the impracticality of providing physical access, the locality should not be deprived of the development by that failure.

4. Fourthly, the arrangement of buildings in the Masterplan are a result of the substantial areas of deep soil planting and the integration of the ‘green web’ anticipated by the SSDCP retain native trees and habitat.

5. Fifthly, due to the concurrent rezoning in the precinct, Lots in “Area 5A” have, because of the smaller scale of development proposed, progressed in advance of the subject site.

6. There are social benefits and a public interest in providing the residential development proposed in such a highly sought after area that should not be denied because of the exceedance of the standard.

39. I am satisfied that the written request adequately addresses the matters required to be addressed by cl 4.6(4)(a)(i) of the SSLEP. In arriving at this state of satisfaction, I note in particular the matters set out in [37(3)] relating to view loss from the adjoining units consider the proposed development, and development for which consent has already been granted in Willarong Road but is yet to commence. I accept that a complying development at 16m in height would result in the same or similar view loss as that likely to result from that proposed and so the impact is not as a result of the particular aspect of the development that is non-conforming.

40. Next I must be directly satisfied that the proposed development is in the public interest for the reasons set out at [37], and because of its consistency with the objectives of the R4 zone which are at [13]. The reasons set out in the written request may be summarised as follows:

1. The proposed development provides a variety of dwelling types, layouts and orientations including 20% of dwelling being adaptable, and 20% being visitable dwellings within a high density residential environment.

2. A café proposed in Stage 2 of the Masterplan will assist in meeting the day to day needs of residents, along with a range of communal spaces.

3. Development proposed in the development application and the Masterplan demonstrates a contemporary aesthetic with suitable transitions in height, modulation and articulation in the form, building separation and variations in materials that is consistent or compliant with the provisions of the ADG.

4. The built form is in a landscape setting that retains a large number of native canopy trees, and provides new areas of planting, common open space and public domain spaces.

5. Finally the proposed development seeks to minimise the amenity-related impacts on adjoining properties which are themselves not inhibited from achieving development intended in the R4 zone.

41. I am satisfied, as I am required to be by cl 4.6(4)(a)(ii) of the SSLEP, that the exceedance is in the public interest as it is consistent with the objectives of both the standard, and of the R4 zone. In forming this opinion, I note the matters underlying the written request for the exceedance of the standard at cl 4.3 of the SSLEP are identical to those underlying the exceedance of the standard at cl 4.4 of the SSLEP.

42. I am satisfied for similar reasons as set out at [25]-[26], which may be summarised as follows:

1. The proposed development has made a form of provision for vehicular access to Lots in “Area 5A” by providing internal road access and soft landscaping within a right of carriageway that permits physical access to the Lots in “Area 5A” in the event that an owner of those Lots chooses to do so.

2. I consider the widespread compliance with the provisions of the ADG as demonstrated in the proposed development to be evidence of a high standard of urban design and residential amenity sought by the objectives of the R4 zone.

3. The ‘green web’ evident in the Masterplan provides meaningful natural landscape in excess of the landscaped area control and so provides a natural landscape setting for the buildings.

43. While I am satisfied in respect of cl 4.6 (4)(a)(ii) of the SSLEP, I note that the concurrence of the Secretary has not been obtained in this matter. Nonetheless, the Court has the power to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of the SSLEP.

44. I have also considered the matters in subcll 4.6(5)(a), (b) and (c) as to whether any matter of significance for State or regional environmental planning is raised, and the public benefit of maintaining the standard. I conclude that in the circumstances of this case, and for the reasons outlined above, that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the circumstances of this case.

45. For the reasons set out above, I am satisfied that the written request prepared in relation to cl 4.3 of the SSLEP and in accordance with cl 4.6 of the SSLEP is well founded and should be upheld.

State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development (SEPP 65)

46. As the proposed development is for residential apartment development, the provisions of SEPP65 apply.

47. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I am satisfied that the statement provided by Nicholas Nasser (Reg No.9457), dated 30 April 2020, when read in conjunction with the amended Statement of Environmental Effects dated 29 April 2020 is in a complying form.

State Environmental Planning Policy No.55 – Remediation of Land (SEPP 55)

48. In relation to cl 7 of SEPP 55, I am satisfied on the basis of the detailed site investigation prepared by Environmental Earth Sciences dated 31 August 2016 that the site is contaminated. However, I am also satisfied that the site will be suitable for the purposes for which development is proposed to be carried out in accordance with cl 7 of SEPP 55 on the basis of the Remediation Action Plan prepared by Environmental Earth Sciences dated 17 August 2020, and the conditions of consent.

49. 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.

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

51. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

2. Pursuant to s8.15(3) of the Environmental Planning and Assessment Act, the applicant is to pay the respondent’s s8.15(3) costs thrown away in the agreed amount of $10,000 within 21 days of the date of these orders.

3. The appeal is upheld.

4. Development application DA-16/0388 seeking consent for a staged Masterplan application and stage 1 consent which includes site planning, site works including cut and fill and engineering works with resultant site RLs building envelopes and building heights, gross floor area, road and infrastructure works, greenweb creation/restoration with public positive covenant and open space is approved subject to the conditions in Annexure A.

……………………….

T Horton

Commissioner of the Court

Annexure A - conditions of consent (537922, pdf)

Annexure B - Masterplan (11371762, pdf)

Annexure C - Stage 1 (16088925, pdf)

**********

Decision last updated: 07 September 2020