Zervos Nominees NSW Pty Ltd v Shoalhaven City Council

[2023] NSWLEC 1498

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zervos Nominees NSW Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1498

Hearing dates:

Conciliation Conference 17 May, 8 June and 25 July 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by Jervis Bay Town Planning, dated 31 May 2023, pursuant to cl 4.6 of the Shoalhaven Local Environmental Plan 2014 to vary the height development standard in cl 4.3 of the Shoalhaven Local Environmental Plan 2014 is upheld.

(2)   The appeal is upheld.

(3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $15,000 within 60 days.

(4)   Development Application No DA16/1465 (as amended) for the demolition of existing structures and construction of a mixed use development consisting of 53 apartments including 12 x 3-bedroom, 31 x 2-bedroom and 10 x 1-bedroom apartments, a basement car parking area and 3 commercial tenancies at ground floor at 2-4 Albatross Road and 173 Kinghorne Street, Nowra, is determined by granting consent subject to the conditions of consent annexed hereto and marked Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2000, cll 49, 50, 55

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Shoalhaven Local Environmental Plan 2014, cll 4.3, 4.6, 7.11

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Zervos Nominees NSW Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
P Hudson (Solicitor)(Respondent)

Solicitors:
Jacovou & Co Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/366585

Publication restriction:

No

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 DA16/1465 seeking consent for the demolition of existing structures and construction of a mixed use development consisting of 55 apartments, including 16 three-bedroom, 31 two-bedroom and 8 one-bedroom apartments, a basement car parking area and 3 commercial tenancies at ground floor (the Proposed Development) at 2-4 Albatross Road and 173 Kinghorne Street, Nowra legally described as Lots 1, 29 and 30 in DP 25114 (the Site).

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 has been held on 17 May, 8 and 21 June, 25 July and 2 August 2023. I presided over the conciliation conference.

3. 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.

4. 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.

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

6. 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 including the terms of cl 4.6 of the Shoalhaven Local Environmental Plan 2014 (SLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement and I have extracted or summarised relevant parts below.

7. The owner of the land, Mr Bill Zervos, has consented to the making of the development application in accordance with cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) as evidenced in the Development Application form filed with the Class 1 Application.

8. The Site is zoned B4 – Mixed Use pursuant to the provisions of Shoalhaven Local Environmental Plan 2014 (SLEP). Development for the purposes of “commercial premises” and “residential flat buildings” are permissible with consent in the B4 zone.

9. The Court is required to consider the contamination status of the Site pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), prior to granting development consent.

10. The Site is currently used for the servicing and repair of motor vehicles in association with car dealerships. There is a decommissioned underground petroleum storage tank on-site. The Applicant filed with the Class 1 Application an Environmental Site Assessment prepared by Envirotech dated 1 March 2016 and relies on the Validation of Remediation Works report prepared by Envirotech dated 12 July 2019 filed 2 August 2023. The Validation of Remediation Works report confirms, at page 3, that the underground petroleum storage tank has been removed and, at page 4, that as at 24 June 2019 the Site was suitably remediated for the intended proposed new residential development. In addition, condition 1 of the agreed conditions of consent includes a requirement that the Validation of Remediation Works report be complied with. Condition 66 also makes provision for contamination and unexpected finds. Accordingly, the Court is satisfied that the Proposed Development complies with s 4.6 of Resilience and Hazards SEPP.

11. As the Site has a frontage onto Albatross Road, a classified road, s 2.1119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) is relevant 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 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.

12. I have reproduced the aerial image from the Respondent’s Statement of Facts and Contentions (SOFAC) filed 17 February 2023 below.

13. The Respondent’s SOFAC contented that the Proposed Development should be refused because it had not been demonstrated that:

1. practicable and safe, vehicular access to the land cannot be provided by a road other than the classified road, namely via Kinghorne Street; and

2. the safety, efficiency and ongoing operation of Albatross Road would not be adversely affected.

14. The Applicant’s amended Proposed Development provides vehicular access to the Site via Kinghorne Street which is not a classified road. Accordingly, the Respondent is satisfied, and the Court is satisfied, that the Proposed Development is consistent with the matters for consideration in s 2.119 (2)(a), (b) and (c) of SEPP Transport & Infrastructure.

15. The Applicant has filed a statement dated 21 July 2023 prepared by a qualified designer, Registered Architect Trevor de Waal, in relation to the Proposed Development that verifies that he designed, or directed the design, of the development, provides an explanation that verifies how the development addresses how the design quality principles are achieved, and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. The Court is satisfied that the matters for consideration in cl 50 of the EPA Regulation have been satisfied.

16. The Proposed Development contravenes the Height of buildings (HOB) development standard provided in cl 4.3 of the SLEP and the Applicant relies on a written request pursuant to cl 4.6 of the SLEP to justify the contravention.

17. The Height of Buildings Map of the SLEP provides a maximum HOB of 8.5m for a portion of the Site and a height limit of 14m for the remainder of the Site as depicted in the image below extracted from the SOFAC.

18. The 8.5m HOB development standard applies where the Site adjoins land zoned R2 Low Density Residential (adjacent to the south western and south eastern boundaries) and provides a transitional height to the lower scale development.

19. The Proposed Development exceeds the 14m height limit at two locations limited to the two lift overruns. One lift overrun exceeds the HOB by 450mm and the other by 595mm. I accept that these exceedances are minor and will not be visible from the public domain.

20. The Court is satisfied that the Written Request is well founded for the following reasons:

1. the Written Request has demonstrated that compliance with the development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance as the exceedance is minor;

2. the Written Request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard;

3. the Proposed Development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development in Zone B4 – Mixed Use.

21. The consent authority is satisfied that all of the essential services listed in cl 7.11 of the SLEP are either available or that adequate arrangements have been made to make them available when required.

22. I am satisfied that the Respondent has notified the Proposed Development and has considered the concerns raised in the written submissions received and the oral submissions made on Site at the commencement of the Conciliation Conference.

23. 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. I adopt the reasons given by the parties as I have set out above.

24. 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:

25. The Court notes that:

1. The Respondent as the consent authority, agrees pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No DA16/1465 to rely upon the following documents:

Plans/Documents	Ref/sheet no.	Prepared by	Dated
Site Plan	DA02.01, Rev C	KannFinch	19/06/23
Basement Level Plan	DA02.02, Rev C	KannFinch	19/06/23
Ground Level Plan	DA02.03, Rev D	KannFinch	19/06/23
Level 1 Plan	DA02.04, Rev D	KannFinch	19/06/23
Level 2 Plan	DA02.05, Rev D	KannFinch	19/06/23
Level 3 Plan	DA02.06, Rev D	KannFinch	19/06/23
Roof Plan	DA02.07, Rev C	KannFinch	19/06/23
Elevations	DA03.01, Rev C	KannFinch	19/06/23
Sections- S1 & S2	DA03.02, Rev C	KannFinch	19/06/23
Sections- S3 & S4	DA03.03, Rev C	KannFiinch	19/06/23
Shadow Diagram 22 Jun Sheet 1	DA04.01, Rev C	KannFiinch	19/06/23
Shadow Diagram 22 Jun Sheet 2	DA04.02, Rev C	KannFiinch	19/06/23
X-VENTIALTION - ADG COMPLIANCE	DA04.05, Rev B	KannFiinch	19/06/23
ADG Compliance-Deep Soil	DA04.07, Rev C	KannFiinch	19/06/23
GFA	DA04.08, Rev C	KannFiinch	19/06/23
3D VIEW WITH 14m & 8.5mHEIGHT PLANE	DA04.09, Rev C	KannFiinch	19/06/23
Acoustic Report	Project No. 3907 V3	Koikas Acoustics	15/06/23
Materials & Finishes	-	KannFinch	May 2023
Validation of Remediation Works	REP-19-8156 (Validation), Rev. A	EnviroTech	12/07/19
Waste Management Plan Proposed Mixed Use Development	Rev B, CRPT-16020003.06B	JN Responsive Engineering	20/06/23
Clause 4.6 Written request	Jervis Bay Town Planning	31 May 2023
16020003-SK08	Alternate Kinghorne Street Access – Vertical Height Clearance Plan	P2
16020003-SK10	Alternate Kinghorne – B85 B99 Passing Turning Path Plan	P2
16020003-SK11	Alternate Kinghorne – B85 Parking Turning Path Plan	P2
16020003-SK12	Alternate Kinghorne – B99 Turning Path Plan	P2
CLTR-16020003.05A	Letter of Updated Traffic Data Analysis dated 16th May 2023
Amended SEPP 65 Declaration – updated design verification statement dated 21 July 2023
Apartment Design Guide Compliance Table dated 1 June 2023
Statement of Environmental Effects dated 30 May 2023

2. The Applicant filed the amending documents on 25 July 2023 and 2 August 2023

Orders:

26. The Court orders that:

1. The Applicant’s written request prepared by Jervis Bay Town Planning, dated 31 May 2023, pursuant to cl 4.6 of the Shoalhaven Local Environmental Plan 2014 to vary the height development standard in cl 4.3 of the Shoalhaven Local Environmental Plan 2014 is upheld.

2. The appeal is upheld.

3. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $15,000 within 60 days.

4. Development Application No DA16/1465 (as amended) for the demolition of existing structures and construction of a mixed use development consisting of 53 apartments including 12 x 3-bedroom, 31 x 2-bedroom and 10 x 1-bedroom apartments, a basement car parking area and 3 commercial tenancies at ground floor at 2-4 Albatross Road and 173 Kinghorne Street, Nowra, is determined by granting consent subject to the conditions of consent annexed hereto and marked Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 05 September 2023