Wolf v Cumberland Council
[2021] NSWLEC 1498
•01 September 2021
Land and Environment Court
New South Wales
Medium Neutral Citation: Wolf v Cumberland Council [2021] NSWLEC 1498 Hearing dates: Conciliation conference on 27 August 2021 Date of orders: 01 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that:
(1) The Applicant is to pay the Respondent’s costs arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $2,500 to be paid within 28 days of orders being made.
(2) The appeal is upheld.
(3) Development Application No. 2020/0793 seeking the demolition of existing structures and construction of a residential flat building containing 24 units over basement parking, associated drainage and landscaping works with strata subdivision on land legally described as Lot 20 Section 10 DP 963, known as 35 Lane Street, Wentworthville is approved subject to the conditions at Annexure B.
Catchwords: DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7
Environmental Planning and Assessment Regulation 2000, cll 50(1AB), 143A
Holroyd Local Environmental Plan 2013
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 13, 16A, 17, 49
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 3
State Environmental Plan (Sydney Harbour Catchment) 2005, cll 3, 20
State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30, Sch 1
Strata Schemes (Freehold Development) Act 1973
Texts Cited: Apartment Design Guide
Category: Principal judgment Parties: Karen Wolf (Applicant)
Cumberland Council (Respondent)Representation: Counsel:
Solicitors:
E Fleming (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Swaab (Applicant)
Cumberland Council (Respondent)
File Number(s): 2021/75256 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal by Cumberland Council of its development application DA-2020/0793 (DA). The DA seeks consent for demolition of existing structures and construction of a residential flat building containing 24 units over basement parking, associated drainage and landscaping works with strata subdivision. The subject site is Lot 20 Section 10 DP 963, known as 35 Lane Street, Wentworthville.
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In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 27 August 2021. Prior to the conciliation process, the parties agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their DA.
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Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA subject to conditions of consent.
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As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:
Landowners consent was provided by the owner of the land at the time of the lodgement of the DA.
Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I have given consideration to the potential contamination of the land. In relation to cl 7(4), the land is not within an investigation area; development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the land; historic zoning controls for the land did not make lawful the carrying out of activities nominated in Table 1. Further, the DA is supported by a preliminary site investigation report. That report considers that the potential for significant contamination of soil and groundwater within the site to be low.
Consistent with cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted for the amended DA.
The development is required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the provisions of the Environmental Planning and Assessment Regulation 2000 (Regulation). The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation: Registered architect number: 8977. As required by cl 30(2) of SEPP 65, I am satisfied that the proposed development demonstrates adequate regard has been given to the design quality principles at Schedule 1 of the SEPP 65, and to the objectives specified in the Apartment Design Guide.
The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as in-fill affordable housing. The parties accept that the subject site meets the requirements of cl 10 of SEPP ARH, namely residential flat buildings are a permissible development under Holroyd Local Environmental Plan 2013 (LEP 2013), the land is not a heritage item, at least 20% of the gross floor area (GFA) is to be used for the purposes of affordable housing and the site is within 400m of Wentworthville Rail station.
Upon the basis of the percentage of the GFA of the development that is used for affordable housing being 50 per cent or more, the development benefits from a permitted FSR bonus of 0.5:1 under cl 13, above that allowed under LEP 2013. The result is a permissible FSR of 1.7:1. The proposed FSR measures 1.69:1. The proposed development is compliant with the FSR control: cl 13 of SEPP ARH.
Consideration has been given as to whether the design of the development is compatible with the character of the local area, as required by cl 16A of SEPP ARH. The parties agree that, as a result of amendments to the plans, the design is compatible with the local character.
Consistent with the requirements of cl 17 of SEPP ARH the development consent nominates the required thirteen units within the development to be utilised as affordable housing for 10 years.
The Applicant has provided evidence that the existing building has been approved for subdivision under the Strata Schemes (Freehold Development) Act 1973, notwithstanding that the strata plan has not been registered. As such, Pt 3 of SEPP ARH does not apply (cl 49(2)(a)).
State Environmental Plan (Sydney Harbour Catchment) 2005 (SEPP (Sydney Harbour Catchment)) applies. Pursuant to cl 3(2), the site in not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area. Nor is it shown as containing a heritage item. As required by cl 20(a) of SEPP (Sydney Harbour Catchment), I have taken into consideration the matters referred to in Pt 3 Div 2 before granting development consent.
The site is subject to the provisions of LEP 2013 and is zoned R4 High Density Residential. Residential Flat Buildings is a permissible use with consent. Demolition is permissible pursuant to c. 2.7. In determining the DA, I have had regard to the zone objectives.
The proposed development, as amended, is compliant with the height development standard in LEP 2013. Clause 4.3 provides for a maximum building height of 15m. The amended development has a maximum height of 14.7m.
Clause 6.7 of LEP 2013 provides stormwater management controls. In determining the DA, I am satisfied that the development is designed to maximise water permeability. I note that the DA is compliant with the relevant landscaped area development control. I accept the agreement of the parties that on this site, it is not practicable to have on-site stormwater retention for use as an alternative supply to mains water. Finally, I am satisfied that any adverse impacts of stormwater runoff on adjoining properties is minimised and mitigated.
Consistent with cl 6.3 of LEP 2013, I am satisfied that water supply, electricity supply, sewage disposal stormwater drainage and road access are available or can be made available.
Clause 6.2 of LEP 2013 applies to the DA as it proposes earthworks. I am satisfied that:
the DA, as amended, will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability the area.
the DA, as amended, will not affect the development on the likely future use or redevelopment of the land,
the DA, as amended, will not affect the development on the existing and likely amenity of adjoining properties,
the preliminary site investigation report confirms the expected quality of the fill or the soil to be excavated,
condition 74 and condition 75 are imposed which require that any fill imported to the site is to be validated and any exportation of waste, including fill or soil, must be classified in accordance with the relevant legislation and deposited as a licenced facility,
the DA, as amended, will not affect the likelihood of disturbing relics,
the DA, as amended, will not affect the proximity to, or have potential adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
the proposal had been designed and conditions have been proposed to ensure that appropriate measures will be adopted by the proposal to avoid, minimise or mitigate the impacts of the development.
The subject site is mapped on the Salinity Map as having moderate salinity potential. In relation to cl 6.8(3) and 6.8(4) of LEP 2013, I am satisfied that:
The development is not likely to have any impact on salinity processes on the land;
Salinity is not likely to have an impact in the development in any meaningful way; and
Appropriate measures are proposed to avoid, minimise or mitigate the impacts of the development.
The original application was notified in accordance with the relevant development control plan and the submissions have been considered.
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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.
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In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
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The Court notes that the Council, as the relevant consent authority, has agreed pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000, to amend Development Application 2020/0793, with the amended plans and documents uploaded on the NSW Planning Portal on 19 August 2021 and filed with the Court on 24 August 2021, as described in Annexure A.
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The Court orders that:
The Applicant is to pay the Respondent’s costs arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $2,500 to be paid within 28 days of orders being made.
The appeal is upheld.
Development Application No. 2020/0793 seeking the demolition of existing structures and construction of a residential flat building containing 24 units over basement parking, associated drainage and landscaping works with strata subdivision on land legally described as Lot 20 Section 10 DP 963, known as 35 Lane Street, Wentworthville is approved subject to the conditions at Annexure B.
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D M Dickson
Commissioner of the Court
Annexure A (171700, pdf)
Annexure B (387548, pdf)
Decision last updated: 01 September 2021
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