Urban Link Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1264

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Link Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1264

Hearing dates:

Conciliation conference held on 1 and 22 February, 22 and 28 March, and 10 and 17 April 2024

Date of orders:

21 May 2024

Decision date:

21 May 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $3,000, such amount to be paid within 21 days of the date of this order.

(2) The appeal is upheld.

(3) The request pursuant to cl 4.6 of the Bankstown Local Environmental Plan 2015 to vary the development standard for height of buildings contained within cl 4.3 thereof, as prepared by Planning Ingenuity dated 26 February 2024, is upheld.

(4) Development consent is granted to development application No DA-822/2021 as amended, for the demolition of existing structures and the construction of a 3-4 storey residential flat building containing 35 residential apartments, including 19 apartments for affordable rental housing, with basement level car parking, on Lots 2 and 3, DP 22196, known as 29 & 31 Waldron Road, Sefton, NSW, 2162, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variation – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 1, s 7

Land and Environment Court Act 1979, s 34

Bankstown Local Environmental Plan 2015, cll 1.8A, 2.2, 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.4

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Affordable Rental Housing) 2009, ss 13, 14

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 11 ss 11.5, 11.6, 11.7, 11.8 (repealed)

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

State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2

State Environmental Planning Policy (Infrastructure) 2007

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

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.100

State Environmental Planning Policy No 65 —Design Quality of Residential Apartment Development, cl 30

Texts Cited:

Bankstown Development Control Plan 2015

Canterbury-Bankstown Community Participation Plan 2019

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

Category:

Principal judgment

Parties:

Urban Link Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/214358

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) against the refusal by Canterbury-Bankstown Council of development application DA-822/2021 (the DA) for the demolition of existing structures and the construction of a 3-4 storey residential flat building containing 35 residential apartments, including 19 apartments for affordable rental housing, with basement level car parking, on Lots 2 and 3, DP 22196 at 29 & 31 Waldron Road, Sefton, NSW, 2162.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 February 2024. I presided over the conciliation conference, which commenced with a site inspection. One objector attended the onsite view.

3. The s 34 conciliation conference was adjourned to 22 February 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned a number of times, to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA). In particular, advice from AUSGRID was required to confirm that an electricity sub-station was required as part of the development.

4. After the conciliation conferences the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The parties advise that the Applicant provided to the Respondent amended plans and material that included a number of changes in the amended DA as follows:

1. deletion of a unit from the ground floor to increase communal open space;

2. removal of an access ramp to increase deep soil planting;

3. installation of a second lift and revised roof design due to second lift;

4. rearrangement of the basement carpark;

5. revised layout of units to improve solar access;

6. redesign of building entry;

7. redesign of bin room and relocation of bin travel ramp; and

8. inclusion of an electrical substation.

6. An updated cl 4.6 variation report prepared by Planning Ingenuity dated 26 February 2024 was submitted by the Applicant to support the proposed cl 4.6 variation of the height of buildings as stipulated at cl 4.3 of the Bankstown Local Environmental Plan 2015 (the LEP). A Design Verification statement prepared by Urban Link architects dated 11 April 2024 was submitted by the Applicant.

7. A signed s 34 agreement with Annexure A was filed with the Court on 17 April 2024, with amended plans and additional material (the amended DA) as agreed between the parties filed on 7 May 2024 and 16 May 2024. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites, which was updated and submitted on 7 May 2024.

8. 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.

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

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The parties advise that Owner’s Consent by the registered owners of the two lots comprising the site accompanied the DA.

Community Participation (Sch 1, Div 2, s 7(1) of the EPA Act)

12. The DA was notified by the Respondent in accordance with the Canterbury-Bankstown Community Participation Plan 2019 for a period of 21 days, between 27 October 2021 and 16 November 2021. No submissions were received in response to this notification.

13. Amended plans were prepared by the Respondent and were re-notified for a further 21 days from 14 October 2022 to 3 November 2022. One submission was received in response to this re-notification, from the owner of the adjoining site, the NSW Land and Housing Corporation, concerned about the isolation of their site and potential privacy and over-shadowing impacts. The parties advise that they are satisfied that the Applicant took all reasonable steps to acquire the site.

Conditions

14. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

15. The parties advise that the development application is not integrated development within the meaning of s 4.46 of the EPA Act.

Canterbury-Bankstown Local Environmental Plan 2023

16. Clause 1.8A of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP) contains savings provisions relating to development applications, stating that “If a development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced.”

17. As the DA was lodged on 14 October 2021, the DA must be assessed on the provisions contained in the LEP.

Bankstown Local Environmental Plan 2015

18. The LEP applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned R4 – High Density Residential pursuant to cl 2.2 of the LEP; and

1. Development for the purpose of a residential flat building is permissible with consent pursuant to cl 2.3 of the LEP;

2. Development for the purpose of demolition is permissible with consent pursuant to cl 2.7 of the LEP; and

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 13 metres. The parties advise that the proposed development has a maximum height of 13.15 metres to the top of the lift overrun; and

1. The Applicant submitted a cl 4.6 written request for the amended DA prepared Planning Ingenuity dated 26 February 2024. The parties have advised that they consider that this request is acceptable; and

2. I am satisfied that the Applicant’s amended cl 4.6 written request is well founded and that the variation to the maximum height of buildings (HoB) development standard is acceptable. The amended DA proposes a maximum building height of up to 13.15 metres, breaching the height development standard by up 0.15 metres to accommodate the lift overrun. The majority of the built form of the proposal is compliant with the HoB standard;

3. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in force in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

4. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. Strict compliance with the maximum building height would prevent the achievement of the Affordable Rental Housing SEPP FSR bonus, and impact on the delivery of new affordable housing with accompanying social benefits;

2. The small area of non-compliance of the roof is located towards the centre of the proposed building and the extent of the height variation is minimal at 0.15m. The centralised location of the lift overrun obscures the overrun from view; and

3. The proposed height breach does not create any additional overshadowing or overlooking impacts to adjoining properties.

3. Approval of the proposed development will be in the public interest for the reasons provided above (at [18(2)]), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the R4 High Density Residential Development zoning of the subject site, for the reasons provided within the Applicant’s written request, which I also adopt.

4. Pursuant to cl 4.4 of the LEP a maximum Floor Space Ratio (FSR) of 1:1 applies to the site. State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Rental Housing SEPP) allows for a FSR bonus for the proposed development of 0.5:1 (refer to [19] below); and

1. The proposed development has a FSR of 1.49:1.

5. Pursuant to cl 6.1 of the LEP, the parties advise that the site is not within the Acid Sulphate Soils Map area.

6. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granting development consent for earthworks. The proposed development includes a basement parking area which will necessitate excavation of the site. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the site and adjoining properties; and

1. A Geotechnical Investigation Report by Geotechnical Consultants Australia was provided with the application to enable the consent authority to properly consider the matters in cl 6.2(3) of the LEP. The parties are satisfied that the report satisfies the requirements of the LEP.

7. Pursuant to cl 6.4 of the LEP, the parties advise that the site is not identified as ‘Biodiversity’ on the Terrestrial Biodiversity Map.

State Environmental Planning Policy(Affordable Rental Housing) 2009

19. The parties advise that the Affordable Rental Housing SEPP was the relevant instrument at the time of lodgement of the DA on 14 October 2021. However, this instrument was repealed by State Environmental Planning Policy (Housing) 2021, which contained savings and transitional provisions under Sch 7A, s 2(a) which states that the new policy does not apply to a development application made, but not yet determined, on or before the commencement date of the new policy. As such the Affordable Rental Housing SEPP is the relevant instrument, and the parties submit:

1. The proposed development satisfies the character test in cl 16A of Affordable Rental Housing SEPP and complies with the relevant standards and provisions in the SEPP;

2. The Affordable Rental Housing SEPP at s 13(2)(a)(i) allows a FSR bonus for the proposed development of 0.5:1 if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher;

3. The provision of 40 off-street parking spaces, three motorcycle spaces and thirteen bicycle spaces satisfies the off-street parking requirements at s 14(2)(a) in the Affordable Rental Housing SEPP; and

4. A compliance table of the relevant standards and provisions of the Affordable Rental Housing SEPP was submitted with the DA.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. The parties advise that the site is located within the Georges River Catchment area.

21. As the DA was lodged on 14 October 2021 the now repealed Ch 11 (Georges Rivers Catchment) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the proposed development through the savings provisions contained at s 6.65 of the Biodiversity SEPP. Under the repealed s 11.5(a), the planning principles contained in Ch 11 apply when a consent authority determines a development application. There are general principles at s 11.6 and specific planning principles at ss 11.7(3) and 11.7(9) to be applied to the amended DA.

22. The parties advise, and I agree, that the Court can be satisfied that the relevant considerations of Ch 11 are addressed, and in particular:

1. Having regard to the proposed use as a residential flat building, the parties submit that they are satisfied that the General Principles in cl 11.6 of the Biodiversity SEPP and the Specific Planning Principles in cl 11.7 of the Biodiversity SEPP have been taken into account in the proposed development.

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

23. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) continues to apply to the DA by operation of ss 4.1 and 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

24. In relation to the provisions of the BASIX SEPP 2004, the Applicant’s amended DA is accompanied by an updated BASIX certificate 1241467M_03 dated 13 May 2024 prepared by Efficient Living Pty Ltd which is consistent with the amended DA.

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

25. Clause 30(2) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) requires that development consent must not be granted if the proposed development does not demonstrate that adequate regard has been given to the design quality principles. Section 29 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) requires that development applications which relate to residential apartments must be accompanied by a statement by a suitably qualified designer; and

1. The amended DA is supported by a Design Verification Statement prepared by Urban Link Architects dated 11 April 2024 which details compliance of the amended DA with the Design Quality Principles set out in Schedule 1 of SEPP 65 and how the design achieves the objectives in Part 3 & 4 of the Apartment Design Guidelines.

State Environmental Planning Policy (Resilience and Hazards) 2021

26. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) 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; and

1. The parties advise that a Preliminary Site Investigation was undertaken by Geotechnical Consultants Australia which concluded that the site is suitable for the proposed development and land use, providing the recommendations within Section 14 of this report are undertaken;

2. The recommendations of Section 14 of this report have been incorporated into the conditions of consent; and

3. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. The parties advise that State Environmental Planning Policy (Infrastructure) 2007 was the relevant instrument at the time of lodgement of the DA. However, this instrument was repealed on 1 March 2022 by State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), which contained savings and transitional provisions relevant only to Ch 3 (Educational Establishments and Child Care Facilities) and Ch 5 (Three Ports – Port Botany, Port Kembla and Port of Newcastle) of the new instrument. As such, the Transport and Infrastructure SEPP is the relevant instrument.

28. The T3 rail line is located approximately 16 metres south of the site’s southern boundary. The Transport and Infrastructure SEPP contains criteria specific to rail noise at s 2.100; and

1. The parties submit that the Acoustic Report by Acousticworks concludes that the proposed development will meet the noise reduction levels required by the Transport and Infrastructure SEPP.

Bankstown Development Control Plan 2015

29. The Respondent advises that the amended DA satisfactorily addresses the provisions of the Bankstown Development Control Plan 2015 (the DCP) that were raised in the Statement of Facts and Contentions (SOFAC).

Conclusion

30. Having considered the advice of the parties provided above at [11-29], I am satisfied that:

1. The Applicants’ amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

31. Further, 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.

31. 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.

32. The Court notes:

1. That Canterbury-Bankstown Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-822/2021 made on 17 April 2024 to rely on the documents specified below:

Amended Architectural Plans
Plan Name	Drawing Ref	Revision	Date	Prepared by
Cover Sheet	DA001	G	2 February 2024	Urban Link
Cover Sheet, calculations	DA002	G	2 February 2024	Urban Link
Site, site location & analysis	DA1001	G	2 February 2024	Urban Link
Site, site plan	DA1002	G	2 February 2024	Urban Link
Floor Plans, basement plan	DA2001	G	2 February 2024	Urban Link
Floor plans, ground floor plan	DA2002	G	2 February 2024	Urban Link
Floor plans, level 01 floor plan	DA2003	G	2 February 2024	Urban Link
Floor plans, level 02 floor plan	DA2004	G	2 February 2024	Urban Link
Floor plans, level 03 floor plan	DA2005	G	2 February 2024	Urban Link
Floor plans, roof plan	DA2006	G	2 February 2024	Urban Link
Elevations	DA3001	G	2 February 2024	Urban Link
Elevations, streetscape analysis	DA3002	G	2 February 2024	Urban Link
Sections	DA4001	G	2 February 2024	Urban Link
Sections, section CC & Height Plane	DA4002	G	2 February 2024	Urban Link
Sections, section DD	DA4003	G	2 February 2024	Urban Link
Compliance, GFA Diagrams	DA5001	G	2 February 2024	Urban Link
Compliance. 2D Winter Solar Access 01	DA5002	G	2 February 2024	Urban Link
Compliance, 2D Winter Solar Access 02	DA5003	G	2 February 2024	Urban Link
Compliance, 3D Solar Access Diagram 01	DA5004	G	2 February 2024	Urban Link
Compliance, 3D Winter Solar Diagram 02	DA5005	G	2 February 2024	Urban Link
Compliance, Adaptable Units	DA5006	G	2 February 2024	Urban Link
Compliance, Affordable Housing	DA5007	G	2 February 2024	Urban Link
Compliance, Solar & Cross Ventilation Diagram	DA5008	G	2 February 2024	Urban Link
Compliance, Landscape Calculation	DA5010	G	2 February 2024	Urban Link
Compliance, 3D Solar Comparison 01	DA5011	G	2 February 2024	Urban Link
Compliance, 3D Solar Comparison 02	DA5012	G	2 February 2024	Urban Link
Compliance, 3D Solar Comparison 03	DA5013	G	2 February 2024	Urban Link
Compliance, 3D Solar Comparison 04	DA5014	G	2 February 2024	Urban Link
Compliance, 3D Solar Comparison 05	DA5015	G	2 February 2024	Urban Link
Compliance, 2D Solar Comparison 01	DA5016	G	2 February 2024	Urban Link
Compliance, 2D Solar Comparison 02	DA5017	G	2 February 2024	Urban Link
Compliance, 3D Solar Diagram-No33 Future Development 01	DA5018	G	2 February 2024	Urban Link
Compliance, 3D Solar Diagram-No.33 Future Development 02	DA5019	G	2 February 2024	Urban Link
Compliance, 3D Solar Diagram-No.33 Future Development 03	DA5020	G	2 February 2024	Urban Link
External finishes, Finishes Schedule	DA6001	G	2 February 2024	Urban Link
Compliance, neighbour’s notification plan	DA5009	G	2 February 2024	Urban Link

2. Updated clause 4.6 variation request – Height of buildings prepared by Planning Ingenuity dated 26 February 2024.

3. Amended Waste Management Plan Revision C by Dickens Solutions dated February 2024.

4. Design Verification Statement prepared by Urban Link architects dated 11 April 2024.

5. Architectural Plans Revision G with NatHERS/BASIX endorsement dated 13 May 2024.

6. BASIX Certificate No 1241467M_03 dated 13 May 2024 prepared by Efficient Living Pty Ltd

34. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $3,000, such amount to be paid within 21 days of the date of this order.

2. The appeal is upheld.

3. The request pursuant to cl 4.6 of the Bankstown Local Environmental Plan 2015 to vary the development standard for height of buildings contained within cl 4.3 thereof, as prepared by Planning Ingenuity dated 26 February 2024, is upheld.

4. Development consent is granted to development application No DA-822/2021 as amended, for the demolition of existing structures and the construction of a 3-4 storey residential flat building containing 35 residential apartments, including 19 apartments for affordable rental housing, with basement level car parking, on Lots 2 and 3, DP 22196, known as 29 & 31 Waldron Road, Sefton, NSW, 2162, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 22 May 2024