Tyler Group Pty Ltd v Campbelltown City Council

[2023] NSWLEC 1432

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tyler Group Pty Ltd v Campbelltown City Council [2023] NSWLEC 1432

Hearing dates:

Conciliation conference held 5 June and 17 July 2023, final agreement filed 18 July 2023

Date of orders:

08 August 2023

Decision date:

08 August 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application 3190/2022/DA-RA and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to section 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 amending the Development Application in the agreed sum of $6,000.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Campbelltown Local Environmental Plan 2015 (CLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application 3190/2022/DA-RA (as amended) for demolition of existing structures and construction of a six-storey residential apartment building comprising 49 units and three levels of basement parking at 17-21 Tyler Street, Campbelltown, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015, cll 2.3, 4.3, 4.6, 5.10, 7.1, 7.4, 7.10, 7.13

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

Environmental Planning and Assessment Regulation 2021, ss 29, 37

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28

Texts Cited:

NSW Department of Planning, Apartment Design Guide (2015)

Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

Tyler Group Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
M Bawden (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/93458

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Tyler Group Pty Ltd (the Applicant), against the deemed refusal of Development Application 3190/2022/DA-RA (the DA) by Campbelltown City Council (the Respondent). The DA sought consent for the demolition of the existing dwellings and construction of a six-storey residential apartment building comprising 49 units over 3 levels of basement parking at 17-21 Tyler Street, Campbelltown (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 June, and 17 July 2023. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of design excellence, building setbacks, internal amenity, balcony sizes, waste management, vehicle safety and the provision of communal open space.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

8. The DA was publicly notified from 12 September to 12 October 2022. Two submissions were received by the Respondent raising issues including concerns for parking and access, traffic congestion, inadequate open space, overshadowing impacts, noise and acoustic privacy impacts, waste and litter generation and construction phase impacts more generally.

9. The parties agree that the amended DA now satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

10. The parties agree, and I am satisfied, that the Campbelltown Local Environmental Plan 2015 (CLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development, characterised as a residential apartment building, is permissible with consent.

11. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the CLEP, the proposed development is consistent with the R4 Medium Density Residential zone objectives, which include providing for the housing needs of the community within a high density residential environment.

12. The parties agree, and I am satisfied, that all principal development standards of the CLEP have been met by the amended DA, with the exception of cl 4.3 Height of buildings, which establishes a maximum height of building development standard of 19m for the site.

13. In such an instance, cl 4.6(3) of the CLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

14. Clause 4.6(4) of the CLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

15. Additionally, cl 4.6(4)(b) of the CLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

16. As required by cl 4.6 of the CLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard set out at cl 4.3.

17. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard of 19m for the following reasons:

1. The subject site has a maximum building height of 22.4m, exceeding the development standard by 3.4m and representing a variation of approximately 17.9%.

2. The areas of exceedance of the maximum building height standard are centred within the building footprint, providing a significant setback such that the non-compliant areas are unable to be perceived in the general presentation of the building to the street and configured in a manner that is broadly consistent with the scale of development appropriate to the locality.

3. The proposed development does not give rise to additional adverse visual impacts, disruption to views or loss of privacy to neighbouring properties beyond those that would be created by a compliant development.

4. The amended DA redistributes building bulk, including relocation of communal open space to the rooftop and providing an increase in side setbacks to better respond to surrounding buildings and to improve the amenity available to future occupants of the proposed building.

5. The objectives of the CLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment and providing a variety of housing types within a high density residential environment. I am satisfied the amended DA meets these objectives.

6. The objectives of cl 4.3 of the CLEP include assisting in the minimisation of opportunities for undesirable visual impact, disruption to views, loss of privacy and loss of solar access to existing and future development and to the public domain. I am satisfied the amended DA meets these objectives.

18. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

19. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the CLEP, Heritage conservation, the site is not identified as a heritage item, nor is it situated within a heritage conservation area.

20. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 7.1 of the CLEP, Earthworks. The Applicant has provided a Geotechnical Investigation Report dated 17 March 2022 and a Waste Management Report dated May 2022. These reports have been assessed by the Respondent and I am satisfied they address the matters set out at cl 7.1(3). Agreed conditions of consent reflecting the reports’ recommendations are imposed.

21. The parties agree, and I am satisfied, that cl 7.4 of the CLEP, Salinity, is enlivened by the DA. The Applicant has provided a Geotechnical Investigation Report dated 17 March 2022. The report refers to geotechnical testing undertaken at the site indicating the presence of ‘slightly’ saline bedrock. Accordingly, conditions of consent have been imposed for supervision, monitoring and assessment, to be complied with prior to and during excavation and earthworks.

22. The parties agree, and I am satisfied, that pursuant to cl 7.10 of the CLEP, Essential services, the Applicant has amended the DA in light of a response received from Endeavour Energy. The amended DA has revised the positioning of the proposed kiosk substation and the Applicant has organised for an accredited electrical services provider to confirm the suitability of the proposed substation siting and its compliance with the relevant energy standards. Consequently, I am satisfied the amended DA addresses those matters set out at cl 7.10(d). Agreed conditions of consent reflecting Endeavour Energy’s recommendations are imposed.

23. The parties agree, and I am satisfied, that pursuant to cl 7.13 of the CLEP, Design excellence, is a relevant provision given that the DA proposes a new building in the R4 High Density Residential zone. The Applicant has provided an Amended Design Excellence Assessment, prepared by Tony Owen Architects dated June 2023. The Respondent has reviewed this Assessment, and I am satisfied the amended DA exhibits design excellence consistent with the terms of cl 7.13 of the CLEP.

24. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The Applicant has provided a Preliminary Site Investigation (PSI), prepared by Broadcast Consulting Pty Ltd. The PSI investigates the likely contamination status of the site and concludes that the site has been historically used for residential purposes and can be made suitable for the proposed use. Accordingly, I am satisfied the amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards. Conditions of consent reflecting the PSI recommendations are imposed.

25. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65).

26. Pursuant to cl 28(2) of SEPP 65, the Campbelltown City Council Design Excellence Panel assessed the DA on 17 November 2022 and raised a number of matters. The parties agree, and I am satisfied, that all matters raised by the Design Excellence Panel in its advice have been considered and appropriately addressed in the amended DA

27. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, Tony Owen Architects (and its nominated architect Mr Tony Owen - NSW registered architect 7080) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design Quality Principles set out in SEPP 65. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument. Chapter 2 of SEPP Biodiversity and Conservation relates to clearing vegetation in non-rural areas. The amended DA proposes to remove 26 trees on the site. The removal of these trees has been assessed in an Arboricultural Impact Assessment prepared by Seasoned Tree Consulting dated 2 August 2022. The parties agree the removal of these trees is consistent with local planning objectives, having regard to the replacement planting strategy proposed in the landscape plans accompanying the amended DA. Conditions of consent are imposed requiring the implementation of the landscaping identified in the landscape plans. Accordingly, I am satisfied Ch 2 of SEPP Biodiversity and Conservation has been appropriately addressed.

29. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. In accordance with s 2.120 of SEPP Infrastructure, the Applicant has provided a Traffic Noise Impact Assessment. Agreed conditions of consent are imposed to reflect the recommendations of the report.

30. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

31. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

32. The Court notes that:

1. Pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the agreement of the Respondent.

2. The Applicant has filed the amended DA with the Court on 19 July 2023.

Orders

33. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application 3190/2022/DA-RA and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to section 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 amending the Development Application in the agreed sum of $6,000.

3. The Applicant’s written request, pursuant to cl 4.6 of the Campbelltown Local Environmental Plan 2015 (CLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the CLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application 3190/2022/DA-RA (as amended) for demolition of existing structures and construction of a six-storey residential apartment building comprising 49 units and three levels of basement parking at 17-21 Tyler Street, Campbelltown, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

93458.23 Annexure A

93458.23 Architectural Plans

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Decision last updated: 08 August 2023