COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by North Sydney Council (Council) of Development Application No DA 443/18. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.
The development application relates to a 1,757m2 parcel of land identified as SP 12678 and SP 53002 at 63 Carter Street, Cammeray (the site). As originally proposed, the DA seeks consent for demolition of two existing residential flat buildings and construction of a new part 4 and part 5 storey residential flat building containing 20 dwellings, and associated landscaping works.
The development application was originally lodged with Council on 19 December 2018, and the appeal lodged on 26 March 2019. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 August 2019, 26 September 2019 and 5 December 2019. I presided over the conciliation conference. The conciliation conference commenced with a view on site and hearing oral submissions from residents of the land immediately adjoining to the north, west and east.
As a result of the conciliation conference, the development application plans were amended, and the parties reached an agreement, based on those amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement and amended plans were filed with the Court on 6 December 2019.
The main changes between the plans as originally submitted to Council and the plans the subject of the s34 agreement are:
1. Lowering the vehicular driveway ramp gradient and relocating the vehicular entrance to the Basement 1 level from ground level
2. Replanning of the ground level parking and lobby arrangements
3. Reducing the excavation in the vicinity of the southern and part of the western boundary at Level 01 and replanning the units in these areas accordingly
4. Reducing the building height in the north-east corner at Level 03 by introducing a larger balcony at this corner and reconfiguring that unit from three bedrooms to two.
5. Introducing a planted 'green roof' over a section of the lower roof at Level 04
6. Setting the northern building line back at angle and introducing western side screening to the balconies on Level 04
7. Reducing the number of units from 20 to 19 and increasing the number of resident parking spaces from 26 to 33 (with 5 additional spaces for visitors being retained).
As a result of the changes to Levels 03 and 04, the visual and view impacts from neighbouring properties, particularly from the units to the west, are improved.
The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions, pursuant to s 4.16(1) of the EP&A Act. 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.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings, as follows:
1. While residential flat buildings are a prohibited use in the R3 Medium Density Residential zone under the provisions of the North Sydney Local Environmental Plan 2013 (NSLEP), the site enjoys the benefit of existing use rights by virtue of the two residential flat buildings being constructed circa 1950 and continuously occupied since that time. According s 4.67(1)(a) of the EP&A Act, and cl 44 of the Environmental Planning and Assessment Regulation 2000 regarding the rebuilding of that use apply.
2. Furthermore s 4.67(3) of the EP&A Act provides that any provisions of an environmental planning instrument which would derogate or have the effect of derogating from the incorporated provisions would have no force or effect. Accordingly, the parties proceeded on the basis that the development standards in the NSLEP did not strictly apply but could be used as a guide to assess the development.
3. The parties also noted that in light of the decisions in oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47 and Saffioti v Kiama Municipal Council [2019] NSWLEC 57 the existing use rights provisions of the EP&A Act do not avoid the need for an assessment of the proposed development against the provisions of the NSLEP in line with the requirements of s 4.15 of the EP&A Act.
4. The NSLEP contains one relevant development standard, at cl 4.3 Height of Buildings, which imposes a height limit of 8.5m above ground level (existing). As a precaution, in the event that the height of building development standard was deemed not to derogate from the incorporated provisions, the applicant submitted a written request under cl 4.6 of the NSLEP to vary this standard. The written cl 4.6 request was prepared by James Lovell and Associates and dated 6 December 2019 (the cl 4.6 request). The parties agreed that the cl 4.6 request
"is well founded and that compliance with the building height development standard would be unreasonable and unnecessary in the circumstances, that there are sufficient environmental planning grounds to justify the contravention of that standard and that the proposed building would be consistent with the objectives of the standard and the zone and thereby be in the public interest."
1. The parties also agreed that as a result of the amendments to the development the matters for consideration under s 4.15(1) of the EP&A Act and the contentions raised have been addressed to the satisfaction of the Council.
Other jurisdictional matters to be satisfied are the relevant provisions of:
1. Deemed SEPP - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP);
2. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)
3. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65); and
4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in [11] to [18] below.
In relation to the question of permissibility, I am satisfied that although the development is for the purpose of a residential flat building, which is a prohibited use in the NSLEP R3 Medium Density Residential Zone, the site has the benefit of existing use rights and therefore, under the provisions of s 4.67(3) of the EP&A Act, that land use prohibition does not apply.
In relation to the matters for consideration under s 4.15(1) of the EP&A Act, I concur with the parties that the likely environmental impacts of development, including bulk and scale, view and visual impacts, privacy and vehicular access have been adequately addressed in the amended plans.
In relation to cll 4.3 and 4.6 of NSLEP, I have considered the cl 4.6 request to vary the height of buildings development standard irrespective of whether or not it derogates from the incorporated provisions of the EP&A Act. I am satisfied that the cl 4.6 request has demonstrated that compliance with the development standard is unreasonable or unnecessary and that it has adequately addressed the matters required to be demonstrated. I have reached these conclusions because:
1. The development satisfies the objectives of the height of building development standard for the reasons set out in the cl 4.6 request; and
2. There are sufficient environmental planning grounds, as set out in the cl 4.6 request, to justify the contravention of the building height development standard.
In accordance with the requirements of cl 4.6(4)(a)(ii) of the NSLEP, I am also satisfied that the proposed development will be in the public interest because:
1. it is consistent with the objectives of the particular standard for the reasons set out in the cl 4.6 request, and
2. it is consistent with the objectives for development within the R3 zone in which the development is proposed to be carried out for the reasons set out in the cl 4.6 request.
In relation to the SREP, I am satisfied the development the subject of the s34 agreement reasonably satisfies the aims and relevant provisions of the SREP, including its planning principles, protection of scenic quality of foreshores and protection of views to and from the harbour.
In relation to SEPP 55, and in particular cl 7(1) and (2), I have considered whether there may be any contamination and associated remediation required. Based on the long term use of the land for residential purposes, the site is unlikely to have resulted in contamination, and there is no evidence the land requires remediation. Any potential asbestos contamination, within the building or on the site, is managed by way of conditions of the consent.
In relation to SEPP 65, an updated SEPP 65 Report (dated August 2019) and Design Verification Statement dated 6 December 2019 have been submitted to the Court verifying achievement of the Design Quality Principles of the SEPP.
In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX Certificate, number 969365M_05 dated 08 December 2019 has been provided.
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.
The Court orders:
1. Leave is granted to the applicant to rely on amended architectural plans by DKO Architects Issue F dated 6 December 2019.
2. The applicant shall pay the respondent's costs pursuant to s 8.15(3) as agreed or assessed.
3. The appeal is upheld.
4. Development consent is granted to development application No. DA 443/18 for the demolition of existing buildings and the erection of a part 4 and part 5 storey residential flat building containing 19 dwellings with basement parking for 33 resident vehicles and 5 visitor spaces at 63 Carter Street, Cammeray subject to the conditions in Annexure A.
[2]
Acting Commissioner of the Court
Annexure A (143 KB, pdf)
Plans (9.35 MB, pdf)
[3]
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Decision last updated: 15 January 2020