Toronto Investments No. 1 Pty Limited v Lake Macquarie City Council

[2024] NSWLEC 1000

Land and Environment Court

New South Wales

Medium Neutral Citation:

Toronto Investments No. 1 Pty Limited v Lake Macquarie City Council [2024] NSWLEC 1000

Hearing dates:

Conciliation Conference on 19 and 20 December 2023

Date of orders:

03 January 2024

Decision date:

03 January 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The request pursuant to clause 4.6 of the Lake Macquarie Local Environmental Plan 2014 to vary the development standard for height contained within clause 4.3 thereof, as prepared by Planning Ingenuity dated 20 May 2022, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No DA/1651/2022 for tree removal, excavation and construction of a mixed-used development with associated car parking, landscaping and lot amalgamation at 114, 116, 118, 120 Cary Street, 1, 2, 5 Bath Street and 3 Arnott Avenue Toronto, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – mixed use development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 29, 38, Sch 7

Coal Mine Subsidence Compensation Act 2017, s 22

Land and Environment Court Act 1979, s 34

Lake Macquarie Local Environmental Plan 2014, cll 4.3, 4.6, 5.10, 5.21, 7.1, 7.10, 7.21

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.8, 2.10, 2.11, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122, Sch 3

Water Management Act 2000, s 90

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

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

Lake Macquarie Development Control Plan 2014

RTA, Guide to Traffic Generating Developments, October 2002

Category:

Principal judgment

Parties:

Toronto Investments No. 1 Pty Limited ACN 611 369 558 (Applicant)
Lake Macquarie City Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
T To (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/20898

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 refusal of development application DA/1651/2022 for mixed used development comprising residential flat building and commercial tenancy with associated site works (the Proposed Development) at 114, 116, 118 and 120 Cary Street, 1, 2, and 5 Bath Street and 3 Arnott Avenue Toronto legally described as Lots 4, 5, 6, 7, 8, 9 and 10, Section 6 in Deposited Plan 2505, Lot 100 in Deposited Plan 847314 and Lot 101 in Deposited Plan 1110774 (the Site).

2. These proceedings commenced as a hearing on site on 18 December 2023 where objectors gave oral evidence in accordance with their written submissions included in the Respondent’s Bundle of Documents filed on 15 December 2023 and additional written submissions and notes of oral submissions filed in court on 18 December 2023.

3. The Applicant provided the following documents at the commencement of the hearing on 18 December 2023, which the parties agree resolve the remaining contentions contained within the Respondent’s Amended Statement of Facts and Contentions (ASOFAC):

1. Amended Architectural Plans (Up to Revision AE) prepared by Mark Lawler Architects (Various dates);

2. Amended Civil Engineering Plans (Up to Revision 5) prepared by Northrop dated 20 November 2023;

3. Concept Stormwater Management Plan prepared by Northrop dated 20 November 2023;

4. Crime Prevention Through Environmental Design Report prepared by Planning Ingenuity dated 14 November 2023;

5. Concept External Works Plan (Revision 6) prepared by Northrop dated 12 December 2023;

6. Letter from Northrop responding to stormwater contentions dated 20 November 2023;

7. Social Impact Assessment prepared by Planning Ingenuity dated 14 November 2023; and

8. Survey Overlay Plan (Revision AC) prepared by Mark Lawler Architects dated 15 November 2023.

4. The key changes made to the Development Application essentially include:

1. Clarification of solar access for unit C101 and detailed sun study;

2. Increase of ceiling height from 2.7m to 3.3m to commercial premises on ground level;

3. Clarification of landscape and tree planting details;

4. Detail of ground level colour finishes and addition of colour and material board plan;

5. Additional information in relation to:

1. Stormwater management; and

2. Traffic.

5. 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 19 and 20 December 2023. I presided over the conciliation conference.

6. 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.

7. 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.

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

9. 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 include the terms of cl 4.6 of the Lake Macquarie Local Environmental Plan 2014 (LMLEP) to vary a development standard and other provisions of various environmental planning instruments. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement and orally to which I have had regard in giving my reasons for being satisfied that the jurisdictional prerequisites have been satisfied.

10. The Respondent notified the Proposed Development to the following external referral agencies:

1. NSW Rural Fire Service – who issued their General Terms of Approval’s (GTA) under s 110B of the Rural Fires Act 1997 on 29 November 2022;

2. Subsidence Advisory NSW – who issued their GTA’s under s 22 of the Coal Mine Subsidence Compensation Act 2017 on 5 September 2022;

3. WaterNSW – who issued their GTA’s under s 90 of the Water Management Act 2000 on 6 October 2022;

4. Ausgrid – who provided a letter with recommendations received on 15 August 2022;

5. Hunter Water – who provided a letter with recommendations received on 11 January 2022; and

6. Transport for NSW – who provided a letter with recommendations received on 29 August 2022.

11. A copy of these responses is contained at Tab E of the Respondent’s Bundle of Documents filed 15 December 2023 and the Court is satisfied that the approvals of the relevant integrated development bodies have been obtained.

12. The Applicant has obtained owners consent from the registered proprietor of the Site (Tab 2 of the Class 1 Application filed with the Court on 20 January 2023). The Respondent had raised a contention in the ASOFAC as to landowners consent for the Proposed Development. The Applicant relies on the survey overlay filed with the Court on 15 December 2023 and I am satisfied that the Site is owned by the Applicant.

13. The Site is zoned B2 Local Centre (now E1 Local Centre) pursuant to the LMLEP.

14. The Site is located directly across Cary Street from Toronto wetlands. The Site is partially affected by the Coastal Wetland buffer and is wholly within the mapped Coastal Environmental Area and Coastal Use Area requiring consideration under Ch 2 Coastal management of State Environmental Planning Policy Resilience and Hazards 2021 (SEPP Resilience and Hazards).

15. Section 2.8 of the SEPP Resilience and Hazards requires that a consent authority must not grant consent to development on land that is identified as ‘Proximity Area for Coastal Wetlands’ on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the development will not significantly impact the biophysical, hydrological or ecological integrity or the quantity and quality of the wetland adjacent coastal wetland.

16. The Proposed Development incorporates adequate stormwater management to ensure that the development will not adversely impact the biophysical, hydrological or ecological integrity or the quantity and quality of the adjacent wetland. The Concept Stormwater Management Plan prepared by Northrop dated 20 November 2023 concludes that the increase in freshwater runoff is anticipated to have a negligible effect on the wetlands. The Applicant also relies on the following documents:

1. Amended Civil Engineering Plans prepared by Northrop at Tab 3 of Exhibit PS-2;

2. Toronto Wetland Supporting Information prepared by Chameleon at Tab 7 of Exhibit PS-1;

3. Groundwater Drawdown Model and Detailed Analysis prepared by CMW Geosciences at Tab 13 of Exhibit PS-1;

4. Addendum letter to Groundwater model prepared by CMBW Geosciences at Tab 14 of Exhibit PS-1;

5. Australasian Groundwater and Environmental Consultants Pty Ltd Response to Contentions prepare at Tab 16 of Exhibit PS-1;

6. Concept External Works Plan prepared by Northrop at Tab 5 of exhibit PS-2.

17. In addition, water quality will be maintained as the management of stormwater on the Site will be collected and reused or alternatively connect to Council’s stormwater infrastructure. There is no existing public access through the site to the waterway. Accordingly, the application does not propose to alter this and has been sympathetic to the character of the area in its design.

18. Accordingly, it has been concluded, that the Proposed Development is unlikely to have an adverse impact on the waterway, water quality or coastal environment which satisfies the terms of s 2.10(2)(a) and s 2.11(1)(b)(i) of the SEPP Resilience and Hazards.

19. Section 4.6 of the SEPP Resilience and Hazards requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

20. Historical photographs in the period 1944 to 1965 appearing as figures 5 to 7 in the Abel Ecology report dated 5 July 2022 show that the site was formerly occupied by residential dwellings which have since been demolished in accordance with construction certificate issued by Metropolitan Building Approvals dated 3 August 2011. There is a demolition work method statement prepared by Husky Demolition Pty Ltd that details how the demolition works and removal of any asbestos waste was to be carried out. A copy of the construction certificate has been filed with the Court.

21. In the May 2023 Assessment Report of the Development Application, the Respondent notes:

“Chapter 4: Remediation of Land

The provisions of chapter 4 require Council to consider the likelihood that the site has previously been contaminated and to address the methods necessary to remediate the site. In particular, this Policy aims to promote the remediation of contaminated land for the purposes of reducing the risk of harm to human health or any other aspect of the environment. The subject site is not known to be contaminated and given previous residential uses, is considered suited to its intended purpose as a mixed-use development.”

22. The Statement of Environmental Effects (SEE) prepared by Planning Ingenuity dated 20 May 2022 provides that the Site is not known to be contaminated and is considered suitable for its intended use as a mixed-use development, given its previous residential uses. Accordingly, I am satisfied that no further investigation is required.

23. The Proposed Development seeks consent for vehicular access to the Site as follows:

1. Entry and exit for passenger vehicles and entry for service vehicles via Arnott Avenue;

2. Service vehicles will exit from the Site onto Cary Street which is a classified road.

24. In accordance with s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure), a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that the development is safe and will not have an adverse effect on the safety, efficiency and ongoing operation of the classified road. Section 2.119 of the SEPP Transport and Infrastructure relates to development with frontage to classified road and provides as follows:

2.119   Development with frontage to classified road

(1)  The objectives of this section are—

(a)  to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b)  to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2)  The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

25. The Development Application adequately address the requirements of s 2.119(2) for reasons including the following:

1. Vehicular access to the proposed development from Cary Street is practicable and safe;

2. The traffic impact statements prepared by McLaren Traffic Engineering that form part of the Development Application (Tab 14, Class 1 Application) conclude that the proposal is supportable on traffic planning grounds;

3. The acoustic impact assessments prepared by Spectrum Acoustics that form part of the Development Application (Tab 15, Class 1 Application) concludes that appropriate acoustic amenity can be achieved in the proposed development, subject to compliance with its recommendations; and

4. The findings of the Expert traffic joint report (JER Traffic) prepared by Mr Matthew McCarthy on behalf of the Applicant and Mr Ken Hollyoak on behalf of the Respondent filed 17 November 2023.

26. The Court therefore can be satisfied that the proposal complies with s 2.119 of the SEPP Transport and Infrastructure.

27. Pursuant to s 2.122 of the SEPP Transport and Infrastructure, the proposal is a traffic generating development (see Sch 3). Section 2.122 of the SEPP Transport and Infrastructure deals with Traffic generating development and provides as follows:

2.122   Traffic-generating development

(1) This section applies to development specified in Column 1 of the Table to Schedule 3 that involves—

(a)  new premises of the relevant size or capacity, or

(b)  an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2)  In this section, relevant size or capacity means—

(a) in relation to development on a site that has direct vehicular or pedestrian access to any road (except as provided by paragraph (b))—the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection—the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

(3)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies that this Chapter provides may be carried out without consent unless the authority or person has—

(a)  given written notice of the intention to carry out the development to TfNSW in relation to the development, and

(b)  taken into consideration any response to the notice that is received from TfNSW within 21 days after the notice is given.

(4)  Before determining a development application for development to which this section applies, the consent authority must—

(a)  give written notice of the application to TfNSW within 7 days after the application is made, and

(b)  take into consideration—

(i)  any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii)  the accessibility of the site concerned, including—

(A)  the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B)  the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii)  any potential traffic safety, road congestion or parking implications of the development.

(5)  The consent authority must give TfNSW a copy of the determination of the application within 7 days after the determination is made.

28. As stated above, the Proposed Development was referred to Transport for NSW (TfNSW) for comment and on 29 August 2022 TfNSW responded and made comments to assist the consent authority in making a determination. Those comments are incorporated into the ASOFAC and have been addressed in the Response to Contentions dated 21 March 2023 prepared by McLaren Traffic Engineering (for which leave was given by the Court on 17 October 2023 for the Applicant to rely on in its Development Application), and also in the JER Traffic.

29. The JER Traffic addresses traffic, vehicle access and pedestrian movements issues raised by Contentions 6 and Contention 10 as it relates to traffic and parking in the ASOFAC. Mr Hollyoak notes that the intersection on the Bay Street approach “is reaching its capacity” (par 8, JER Traffic) and recognises that the “proposed improvement will however provide marginal benefits to the operation of the intersection in traffic capacity terms” (par 12, JER Traffic) and notes that concurrence for the arrangement to have service vehicles exit onto Cary Street by means of a driveway has been received from TfNSW (par 13, JER Traffic).

30. Mr Hollyoak is of the view that a partial improvement can be provided to the Bay Street approach of the Cary Street intersection as “sketched in yellow below and TfNSW has agreed that it will provide some benefit” (par 11, JER Traffic). Mr McCarthy does not oppose a condition of consent to this effect. I reproduce at Fig 1 Mr Hollyoak’s sketch from p 2 of the JER Traffic below:

Fig 1: Sketch by Mr Hollyoak on page 2 of JER Traffic

31. Mr McCarthy notes that TfNSW “has not opposed the development on a traffic flow efficiency basis” (par 32, JER Traffic).

31. The Applicant relies on the Traffic Impact Assessment by McLaren Traffic dated 4 March 2022 and the Proposed/Draft Conditions of Consent include the following condition:

“4 Transport for NSW – Requirements

Prior to the issue of a Construction Certificate, the applicant shall obtain an approval from Transport for NSW (TfNSW) under Section 138 of Roads Act for all works proposed on classified roads including:

(a) All works on Cary Street, including extension of the central concrete median, and basement anchoring (if any)

All works so approved shall be undertaken at full cost to the developer and completed prior to issuing the final Occupation Certificate for the development.

NB:The applicant is responsible for providing noise attenuation measures in accordance with the NSW Road Noise Policy 2011, prepared by the department previously known as the Department of Environment, Climate Change and Water.”

33. Mr McCarthy in the JER Traffic addresses the considerations of s 2.119 of the SEPP Transport and Infrastructure. He refers to the Guide to Traffic Generating Developments 2002 as outlining the performance standard to be used (par 22, JER Traffic).

34. Mr McCarthy concludes that the “adverse impacts at intersections from a traffic engineering perspective are changes in average delay upwards of 13.2 seconds to generally 14 seconds” (par 27, JER Traffic) and that based on the changes in average delay in the SIDRA results reproduced in the JER Traffic at pars 29 and 30, “at no point do they exceed changes of 13.2 seconds to 14 seconds. Hence, from my area of expertise, it can be concluded that the development does not have adverse traffic impact on the assessed road intersections.” (par 31, JER Traffic).

35. Mr Hollyoak concludes at par 43, p 9 of the JER Traffic, in response to cl 7.21 of the LMLEP regarding essential services and suitable vehicular access as follows:

“In relation to traffic, the only shortcomings in the infrastructure proposed, which in my view should be provided, is the widening of the Bay Street approach to the traffic signals to facilitate two compliant width lanes at the stop line (as described at Para 9)”

36. The Court can therefore be satisfied that s 2.122 of the SEPP Transport and Infrastructure has been adequately addressed.

37. The proposal is a BASIX affected building in accordance with Sch 7 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). A BASIX certificate pursuant to the State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 has been prepared in support of the Amended Application and has been filed with the Court on 20 December 2023.

38. Section 29 of the EPA Regulation requires that development applications which relate to residential apartments must be accompanied by a statement by a suitably qualified designer. Further, s 29(2) of EPA Regulation provides:

(2) The statement must—

    (a) verify that the qualified designer designed, or directed the design of, the development, and

    (b) explain how the development addresses

(i) the design quality principles, and

(ii) the objectives in Parts 3 and 4 of the Apartment Design Guide.

39. The Design Verification Statement prepared by Mark Lawler Architects at Tab 6 of the Class 1 Application, includes:

1. a statement confirming that the qualified designer designed or directed the design of the development; and

2. explains how the design quality principles are achieved, how the objectives in Parts 3 and 4 of the Apartment Design Guide have been achieved.

40. Accordingly, the Court is satisfied that the Proposed Development complies with State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and s 29 of the EPA Regulation.

41. The Site is subject to a maximum height of building (HOB) development standard pursuant to cl 4.3 of the LMLEP in accordance with maximum heights shown in the ‘Height of Buildings Map’. The Site is subject to 3 maximum HOB development standards being 10m, 13m and 16m. The Development Application, as amended, provides a maximum height exceedance which differs across the site as follows and as depicted in Fig 2 and Fig 3 below:

1. 6.84m or 68.4% variation of 10m;

2. 6.05m or 60.5% variation of 10m;

3. 7.34m or 56.5% variation of 13m; and

4. 4.24m or 26.5% variation of 16m.

Fig 2: Drawing no. 1558A-7-18 - LEP Height Limit Diagram - View 1 dated 16 March 2022 and

Fig 3: Drawing 1558A-7-19 - LEP Height Limit Diagram - View 2 dated 16 March 2022.

42. The Applicant relies on a written request pursuant to cl 4.6 of the LMLEP prepared by Planning Ingenuity dated 20 May 2022 (Written Request) which concludes that the height breach is primarily in relation to the lift overrun and rooftop communal area. Clause 4.6 of the LMLEP provides relevantly, as follows:

4.6   Exceptions to development standards

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

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

…

43. The Court is satisfied that the Written Request demonstrates that compliance with the HOB development standard in cl 4.3 of the LMLEP is unreasonable or unnecessary in the circumstances at pp 49 and 53-54 because the Proposed Development is consistent with the objectives of the development standard being firstly to ensure the height of buildings are appropriate for their location and secondly, to permit building heights that encourage high quality urban form. Preston CJ in the decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 expressed that one of the five ways to demonstrate that compliance with a development standard is unreasonable and unnecessary is that the objectives of the standard are achieved notwithstanding non-compliance with the standard.

44. In terms of location of the Site, the Written Request considers the zoning of the B2 Local Centre and the approaches to the Site and the Toronto Town Centre, as mapped in Part 10 of the Lake Macquarie Development Control Plan 2014. The Written Request demonstrates that:

“the significance of surrounding heritage items including the Toronto Hotel is visually maintained and their settings are not adversely affected by the proposed building. The scale of development is reduced towards the east as the site and surrounds falls towards the Lake Macquarie foreshore. Furthermore, the proposed development creates a ‘gateway’ to Toronto to indicate entry into the Toronto Town Centre by providing a higher density landmark development of high architectural merit. […] the proposed development is of a scale that is compatible with the site characteristics and Town Centre context … provides a height transition from the busy classified road (Cary Street) to lower scale heritage developments along the Lake Macquarie foreshore. Concentrating the tallest parts of the development to the west of the site also results in benefits in terms of neighbouring residential amenity. These benefits, both in terms of the superior urban design outcome and enhanced amenity are a direct consequence emanating from the proposed height breaches.”

45. In terms of the objective to encourage high quality urban form, the Written Request refers to the “high quality built form, high levels of solar access and excellent internal living spaces” and justifies the contravention of the HOB development standard on the basis of a better design outcome. The Written Request draws into context the fact that the Site is comprised of a number of lots with varying height limits and an 75 m frontage to Cary Street in order to demonstrate that “the design has been undertaken in a manner which enables the building to be viewed as a single development albeit articulated across the site rather than uniformly breaking the massing up in a complicated and disjointed manner to comply with the prescribed height limits.” I accept that “The ability to consolidate the lots and achieve a different building design to that proposed in the Town Centre Area Plan DCP provides for additional high quality and visually interesting architectural features and options that would not be available with a compliant building.” And finally, “The objective of the clause would be defeated or thwarted with greater height to Arnott Avenue as the buildings would not be appropriate for this end of the site, adjacent to nearby heritage items and would have an inferior urban form when compared to the subject proposal.”

46. The Court is satisfied that the Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the HOB development standard at pp 50 – 53 in accordance with the decision of Preston CJ of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118. The Written Request lists seven environmental planning ground to justify the contravention of the development standard, which in my opinion are sufficient, including the following:

1. The proposed building envelope responds to the site context with pronounced height along the classified road and reducing to the east towards the Lake foreshore and allowing increased building separation through the middle of the Site;

2. There will be no adverse impacts on the nearby heritage items as a result of the HOB contravention;

3. The extent of the HOB contravention facing Arnott Avenue is limited to “a modest” 480mm balcony projection on the southernmost part of the building which I accept will not be obviously perceivable to the general passer-by; and

4. The following objects of s 1.3 of the EPA Act are achieved:

1. The proposal promotes the orderly and economic use and development of land through redevelopment of an underutilised site for mixed use commercial and residential uses (s 1.3(c), EPA Act); and

2. The proposed development promotes good design and amenity of the built environment through a well-considered design which is responsive to its setting and context (s 1.3(g), EPA Act).

47. In accordance with cl 5.10 of the LMLEP, consent must not be granted to a development unless the consent authority has considered the impact of the development with respect to a heritage item or if the development is located within a heritage conservation area. The Site is not identified as a heritage item, nor is it mapped within a heritage conservation area. The Site is in close proximity to a number of heritage items being:

1. Heritage item 21 – Fassifern to Toronto Branch Railway Line;

2. Heritage item 171 – Boatman's Cottage, Lakefront Boathouse and Winches, Lakefront and House;

3. Heritage item 172 – Building Restaurant; and

4. Heritage item 173 – Royal Motor Yacht Club Annexe.

48. Nonetheless, the Applicant has provided a Statement of Heritage Impact prepared by John Carr Heritage Design dated 8 November 2021 at Tab 8 of the Class 1 Application. The Statement of Heritage Impact concludes that the Proposed Development has a minimal impact on the heritage values of the heritage items listed above. The Court also notes Drawing no 1588A - 7-23 – colour and material board (Rev AB dated 17 November 2023 – Tab 1 of Exhibit PS-2) and the Joint Expert Planning Report filed 11 December 2023 which concludes that contention 14 of the Respondent’s ASOFAC is addressed by the schedule of finishes attached to that report.

49. Clause 5.21 of the LMLEP applies to land identified as “Flood Planning Area” on the Flood Planning Map and land at or below the flood planning level and provides that development consent must not be granted to development unless the consent authority is satisfied as to the matters listed in subcl (2). The Site is not mapped on the Flood Planning Map. Nonetheless, the Amended Application is accompanied by Concept Stormwater Plan prepared by Northrop dated 20 November 2023 (see Tab 3 of Exhibit PS-2) which concludes that there will be a negligible effect and there will not be a significant increase in local flooding risks.

50. The Site is identified as being affected by acid sulfate soils Class 5 on the Acid Sulfate Soils Map of the LMLEP. The Court is satisfied that the Proposed Development satisfies the requirements of cl 7.1 of the LMLEP because an Acid Sulfate Soil Assessment and Management Plan by Chameleon Geosciences is included in the Development Application at Tab 9 of the Class 1 Application.

51. Clause 7.10(4) of the LMLEP provides that development consent must not be granted to development for the purposes of a hostel, residential flat building or seniors housing on land in Zone B2/E1 Local Centre, unless it is part of a mixed use development in which most of the ground floor of the building facing the primary street has an active street frontage and the consent authority is satisfied that it is to be used for the purposes of commercial premises or a health services facility. The Court is satisfied that cl 7.10 of the LMLEP is satisfied because the Proposed Development proposes to have the ground floor of the building facing the primary street, being Cary Street, be used for commercial purposes and accordingly, activates most of the street frontage as depicted in Drawing No 1588A-1-04 – Ground Plan – Level 01 at Fig 4

Fig 4: Drawing No. 1588A-1-04 – Ground Plan – Level 01

52. The Site is located in a town centre with access to existing infrastructure. Clause 7.21 of the LMLEP provides that development consent must not be granted unless the consent authority is satisfied that any of the essential services set out in the clause are available or that adequate arrangements have been made to make them available. The Court is satisfied that the Proposed Development satisfies the requirements of cl 7.21 of the LMLEP because material included in the Development Application including the architectural, stormwater and civil plans demonstrate that water, electricity, sewage and stormwater infrastructure is available or provided.

53. 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.

54. 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:

55. The Court notes that:

1. Lake Macquarie City Council as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA/1651/2022, in accordance with the following documents (Amended Application):

Architectural Plans prepared by: Mark Lawler Architects
Name of Plan	Drawing Number	Issue	Date
Site Plan – Level 01 (Ground)	1588A – 1 – 01	AC	29.11.2023
Ground plan – Level 01	1588A – 1 – 04	AE	22.11.2023
Elevations	1588A – 2 – 01	AC	17.11.2023
Colour and material board	1588A – 7 – 23	AB	17.11.2023
Survey Overlay	1588A – 1 – 23	AC	15.11.23
Engineering Plans prepared by: Northrop
Cover Sheet	C000DA	2	20.11.23
Erosion and sediment control plan	C00DA	4	20.11.2023
Erosion and sediment control notes	C01DA	4	20.11.2023
Erosion and sediment control details	C02DA	4	20.11.2023
Stormwater management and levels plan – basement 2	C10DA	4	20.11.2023
Stormwater management and levels plan – basement 1	C11DA	5	20.11.2023
Stormwater management and levels plan ground floor	C12DA	5	20.11.2023
Civil Details	C20DA	5	20.11.2023
Concept External Works Plan	C30DA	6	12.12.2023

Document	Reference	Author	Date
Geotechnical Report	GS8030-1A Rev 3	Chameleon Geosciences P/L	25 February 2022
Concept Stormwater Management Plan	NL171556 Rev G	Northrop	20 November 2023
Social Impact Assessment	M2000034	Planning Ingenuity	14 November 2023
Crime Prevention Through Environmental Design	M2000034	Planning Ingenuity	14 November 2023
BASIX Certificate	1261377M_03	Building Sustainability Assessments	19 December 2023
Voluntary Planning Agreement Offer	-	Mills Oakley	19 December 2023
Response to Issues Letter	Northrop	20.11.23

2. The Applicant is not required to lodge the Amended Application on the NSW Planning Portal pursuant to section 38(4) of the Environmental Planning and Assessment Regulation 2021.

3. The Applicant has filed the Amended Application with the Court on the same date as this agreement.

Orders:

56. The Court orders that:

1. The request pursuant to clause 4.6 of the Lake Macquarie Local Environmental Plan 2014 to vary the development standard for height contained within clause 4.3 thereof, as prepared by Planning Ingenuity dated 20 May 2022, is upheld.

2. The appeal is upheld.

3. Development consent is granted to Development Application No DA/1651/2022 for tree removal, excavation and construction of a mixed-used development with associated car parking, landscaping and lot amalgamation at 114, 116, 118, 120 Cary Street, 1, 2, 5 Bath Street and 3 Arnott Avenue Toronto, subject to the conditions of consent in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (436426, pdf)

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Decision last updated: 03 January 2024