Solicitors:
King and Wood Mallesons (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2022/142088
Publication restriction: Nil
[2]
Judgment
COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA No 2022/95 (the DA) by Willoughby City Council (the Council).
The DA seeks consent for alterations and additions to the retained part of the existing building to provide a mixed use building with retail on Ground Floor, Level 1 and Level 3, and residential apartments on Levels 3 to 6, above ground carparking, reduction in the number of apartments from 15 to 14 and alterations to the rooftop communal open space, relocation of the stair and lift core and lot consolidation (Proposed Development) at 282 Victoria Avenue, Chatswood, comprising Lot 1 in DP 560914 (Site).
The previous development consent in respect of the Site (DA-2018/430) for the conversion of the existing commercial building to shop top housing, to retain and adapt the existing building for use as a mixed use development containing ground level, Level 1 and Level 3 retail and business premises, with three levels (Levels 4, 25 and 6) of residential units, above parking for 35 cars, internal building works, changes to the building facades, and the construction of a landscaped, open space area on the roof top, with an easement for light and ventilation (over 284 Victoria Avenue, Chatswood), at 282 Victoria Avenue, Chatswood, was approved by the Land and Environment Court on 21 August 2020 (Approved Development).
The DA was lodged on 28 February 2022. It was notified in accordance with Council's notification policy from 24 March 2022 to 14 April 2022. One public submission was received.
The Applicant lodged an appeal against the deemed refusal of the DA under s 8.7 and 8.11 of the EPA Act in Class 1 proceedings on 17 May 2022. These proceedings are being heard together with Land and Environment Court proceedings no. 2022/142105 in respect of the adjacent site at 284 Victoria Avenue, Chatswood.
On 31 August 2022, the matter was referred to a s34 conference. I was the presiding Commissioner. In response to the matters raised in the Council's SOFC, as discussed during the s34 conference, the applicant elected to supplement the application with additional documentation and plans (the Amended Development Application). The amended plans and documents were uploaded to the NSW Planning Portal on 18 January 2023, 3 March 2023 and 21 March 2023.
Willoughby City Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) (which continues to have force despite its repeal by reason of cl 3(1)(a) to Sch 6 of the Environmental Planning and Assessment Regulation 2021), to the Applicant amending the DA in accordance with the drawings and documents listed at Schedule A.
The amended DA was also notified in accordance with Council's notification policy from 24 January 2023 to 14 February 2023. One public submission was received, which has been considered by the Respondent. That submission raised an issue regarding the desirability of residential development on the Site. The parties agree and I am satisfied that, as set out at [13(3)] below, the Proposed Development is permissible on the Site.
The conciliation conference was reconvened a number of times before a signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 21 March 2023. This decision involved the Court upholding the appeal and granting conditional development consent to the Proposed Development (as amended).
I am informed by the parties that the latest amendments resolved the contentions raised in the SOFC and they now invite the Court to exercise the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application subject to conditions as set out in parties' executed s34 agreement.
Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties' decision if the Court could have made that decision in the proper exercise of its functions. In this case there are jurisdictional preconditions that must be satisfied before this function can be exercised and the parties have identified these matters in a jurisdictional submission filed with the s34 agreement.
Having considered the parties' joint submissions and the evidence before me, I am satisfied about the following matters:
[3]
Willoughby Local Environmental Plan 2012
The relevant jurisdictional matters in relation to the Willoughby Local Environmental Plan 2012 (WLEP) are:
1. The Site is zoned B3 Commercial Core under the WLEP, in which development for the uses proposed is permitted with consent. The Site is also within Area 5 of the Special Provisions Area Map - sheet SPA_004 within the WLEP.
2. The residential element of the Proposed Development is for the purpose of 'shop top housing', as defined under the WLEP.
3. Shop top housing is permissible with development consent on the Site pursuant to cl 2.5 - Additional permitted uses, relevantly, which may be carried out with development consent in accordance with the conditions specified in Sch 1 in relation to that additional permitted use. Schedule 1 cl 31 provides:
31 Use of certain land at Victoria Avenue, Chatswood
(1) This clause applies to land at Victoria Avenue, Chatswood, being "Area 5" on the Special Provisions Area Map.
(2) Development for the purpose of shop top housing is permitted with development consent if the ground level and first level of the development are used for the purpose of retail premises or business premises.
1. Clause 2.3(2) requires that regard be had to the zone objectives. The parties agree and I am satisfied that the Proposed Development is consistent with the zone objectives which are:
• To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.
• To encourage appropriate employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To support the role of St Leonards as a specialised centre providing health, research and education facilities.
• To strengthen the role of Chatswood as a major centre for the inner north sub-region and to improve its public domain and pedestrian links.
• To protect and encourage safe and accessible city blocks by providing active land uses on street and pedestrian frontages.
1. Clause 2.7 requires development consent for demolition. The Proposed Development includes demolition.
2. Pursuant to cl 6.7(3) of the WLEP, development consent must not be granted for the erection of a building unless the consent authority is satisfied that the proposal will provide an active street frontage (as defined under cl 6.7(5) of the WLEP). All floor space at Ground Floor Level (but for elements excluded under cl 6.7(4) of the WLEP) is proposed to be used for the purpose of retail premises. The parties agree that the Proposed Development provides an active street frontage.
Exceedance of the height control
1. Clause 4.3 nominates a maximum building height of 14m. In relation to the existing building on the Site, the maximum building height is 29.34m. In relation to the Proposed Development, the maximum proposed height is 27.85m (which matches the maximum height under the Approved Development apart from a minor redistribution of bulk at the rooftop level). The maximum variation to the building height control is 13.85m.
2. The objectives of cl 4.3 are:
• to ensure that new development is in harmony with the bulk and scale of
surrounding buildings and the streetscape,
• to minimise the impacts of new development on adjoining or nearby
properties from disruption of views, loss of privacy, overshadowing or visual
intrusion,
• to ensure a high visual quality of the development when viewed from
adjoining properties, the street, waterways, public reserves or foreshores,
• to minimise disruption to existing views or to achieve reasonable view
sharing from adjacent developments or from public open spaces with the
height and bulk of the development,
• to set upper limits for the height of buildings that are consistent with the
redevelopment potential of the relevant land given other development
restrictions, such as floor space and landscaping,
• to use maximum height limits to assist in responding to the current and
desired future character of the locality,
• to reinforce the primary character and land use of the city centre of
Chatswood with the area west of the North Shore Rail Line, being the
commercial office core of Chatswood, and the area east of the North Shore
Rail Line, being the retail shopping core of Chatswood,
• to achieve transitions in building scale from higher intensity business and
retail centres to surrounding residential areas.
1. Clause 4.3A(3) nominates that the height of a building on land in Victoria Avenue, Chatswood that is identified as "Area 3" on the Height of Buildings Map must not exceed, for the 1 metre of the building back from the road frontage, 7 metres above ground level (existing) at the centre point of the lot boundary where it adjoins the road frontage.
2. The existing building on the Site exceeds the maximum 7m wall height limit within the 1m setback from Victoria Avenue at 26.4m.
3. The Proposed Development proposes a maximum height of 10.6m within the 1m setback from Victoria Avenue (Victoria Avenue Frontage Height). The maximum variation is therefore 3.6m.
4. The Proposed Development relies upon a Written Request (the Written Request) to vary the development standard contained in cl 4.3A of the WLEP pursuant to cl 4.6 of the WLEP.
5. The Request in accordance with cl 4.6 of the WLEP has been prepared by Planning Ingenuity Pty Ltd and dated 11 January 2023, seeking a variation of the development standards for height under cll 4.3 and 4.3A of the WLEP.
6. The Request says that compliance with cll 4.3 and 4.3A of the WLEP is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standards and B3 Zone are achieved, notwithstanding the noncompliance with the numerical standards for reasons which can be summarised as follows:
1. The scale of the Proposed Development is "in harmony" with the surrounding buildings and streetscape, despite the numerical variation. The Proposed Development does not exceed the maximum height of the Approved Development (with the exception of a minor redistribution of bulk at the rooftop level) and will significantly reduce the approved and existing Victoria Avenue Frontage Height which provides an enhanced built form that will improve the amenity of future occupants as well as the visual amenity of the streetscape and amenity of adjoining properties.
2. The Proposed Development is not for new development but instead involves alterations and additions to an Approved Development. The alterations and additions have been designed to not increase the bulk or scale of the existing building and Approved Development, with the maximum height of the subject development being lower than the existing building and maintaining the same height as the Approved Development.
3. The impacts of the Proposed Development on adjoining or nearby properties in terms of disruption of views, loss of privacy, overshadowing or visual intrusion are almost identical to the Approved Development.
4. The Proposed Development will not be readily visible from any waterways, public reserves or foreshores and will have no visual impact on these areas.
5. The Proposed Development does not increase the scale and bulk of the existing building.
6. The Proposed Development will not result in any material loss of views or outlook when compared to the Approved Development.
7. The reduced height to Victoria Avenue is compatible with the scale anticipated by the planning controls.
8. The proposed height of the Proposed Development responds to the current and desired future character of the locality.
9. The Proposed Development will provide a significant improved offering of commercial floor space at Ground Floor level and Level 1 which gives greater effect to the objectives of the zone. The Proposed Development reinforces commercial character and provides residential accommodation above to service the primary character of the commercial core of Chatswood.
10. The height of the Proposed Development is consistent with the existing and Approved Development on the Site and is compatible with surrounding development within the locality.
1. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), an applicant need only establish one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]).
2. I am satisfied that the relevant standard is not relevant in the circumstances of this case for the grounds set out in the Written Request.
3. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the height standard for reasons contained in the Request, that may be summarised as follows:
1. The Proposed Development (as amended) is contextually responsive to building design and will ensure conformity with the scale and character established by recent approvals throughout the locality.
2. The Proposed Development results in a reduction in the Victoria Avenue Frontage Height. The Victoria Avenue Frontage Height will provide for a two-storey podium and tower element above that is setback approximately to provide a form that is generally consistent with the planning controls. The Proposed Development will ensure the two-storey form is compatible with the scale of surrounding properties on Victoria Avenue, including the proposed development at 284 Victoria Avenue and will enhance the pedestrian scale of the locality.
3. The Proposed Development will enhance the appearance of the building, respect the fine grain and two-storey development on Victoria Avenue and provide for an outcome that is generally anticipated by the applicable planning controls.
4. The Site is flood affected and as outlined in the Flood Report prepared by ACOR Consultants Pty Ltd dated 16 December 2022 (listed at Schedule A), the proposed finished floor level at the northern side of the Proposed Development is required to be at 84.90m Australian Height Datum (AHD), typically more than 1m above street level on Victoria Avenue. These increased levels contribute to the overall Victoria Avenue frontage height variations.
5. It is considered that the retention of the existing fabric and repurposing of the building results is a superior environmental outcome, despite the height breaches. The Proposed Development enables the adaptive reuse of a dated building to provide a high quality modern development that will enhance the visual quality and amenity of the streetscape.
6. The subject site is located on a prominent corner which is a gateway to the commercial core of Chatswood CBD and can accommodate the additional height above the development standards.
7. The reconfiguration and redistribution of the Approved Development provides a number of land uses that are anticipated by the zoning and provide a better spatial and amenity outcome when compared to the existing development. The Proposed Development will not give rise to any adverse traffic and parking impacts on the local road network, despite the height variations.
8. The Proposed Development's exceedances to cll 4.3 and 4.3A of the WLEP do not materially impact the amenity of the neighbouring properties (when compared to the existing and Approved Development) and have been designed in such a way to ensure that the exceedances to the controls contained in cll 4.3 and 4.3A are not visually jarring from the public domain.
1. I consider the Proposed Development (as amended) to be consistent with the objectives of the relevant standards, and I am satisfied that the objectives of the B3 zone, set out at [13(4)], are also achieved. In forming this opinion of satisfaction, I note the mixed-use nature of the development provides ground floor commercial tenancies, and is located immediately adjacent to good public transport services (particularly buses).
2. Accordingly, I am satisfied that the Proposed Development (as amended) is in the public interest pursuant to cl 4.6(4)(a)(ii) of the WLEP and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act.
3. For the reasons stated above, I find the Written Request to vary the height standard should be upheld.
4. Clause 4.6(4)(b) of the WLEP also requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.
5. In Planning Circular PS20-002 dated 5 May 2020, it was advised that consent authorities can assume the Planning Secretary's concurrence to vary development standards pursuant to cl 4.6 where a variation does not exceed 10% or relates to a non-numerical standard. The parties accept that concurrence of the Secretary cannot be assumed in these proceedings.
6. Notwithstanding the above, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.
7. I am satisfied that the contravention of the height standard in the Proposed Development (as amended) does not raise any matter of significance for state or regional environmental planning, and there is a public benefit served by upholding the Request for the reasons set out above.
Floor Space Ratio Exceedance
1. Clause 4.4 nominates a maximum Floor Space Ratio (FSR) of 2.5:1.
2. The existing building exceeds the maximum FSR, with a FSR of 3.98:1 (4,768m2). The Proposed Development has an FSR of 3.4:1 (4,130m2) which results in a variation of 1,136m2 or 37.9% to the maximum FSR standard. The Proposed Development relies upon the cl 4.6 exceptions to development standards.
3. The objectives of cl 4.4 are:
(a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land,
(b) to limit traffic generation as a result of that development,
(c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,
(d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone,
(e) to permit higher density development at transport nodal points,
(f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood,
(g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood,
(h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood,
(i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas,
(j) to encourage the consolidation of certain land for redevelopment,
(k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses.
1. A Written Request (the Written Request) in accordance with cl 4.6 of the WLEP has been prepared by Planning Ingenuity Pty Ltd and dated 23 February 2022, seeking a variation of the development standard for FSR under cl 4.4 of the WLEP.
2. The Written Request says that compliance with the standard is unnecessary or unreasonable in the circumstances of this case as the objectives of the FSR and B3 Zone are achieved, notwithstanding the non-compliance with the numerical standards for reasons which can be summarised as follows:
1. The Proposed Development provides a reduction in Gross Floor Area (GFA) compared to the existing and Approved Development.
2. The Proposed Development provides a more efficient design and configuration by redistributing existing and approved bulk within the existing and approved envelope and repurposing the space for high quality commercial and/or residential floor area. The Proposed Development is of an intensity that is less than the Approved Development, but entirely compatible with that of surrounding development.
3. The Proposed Development shares access with No. 284 Victoria Avenue (subject to a separate DA) which provides a superior result by removing the vehicle crossover at No. 284 Victoria Avenue to enhance the safety and amenity of pedestrians on Victoria Avenue. The single vehicular access point can be permitted through easements and rights of way for vehicles, pedestrians, loading and waste and/or via consolidation of the allotments. In either event, the provision of a single access point from Neridah Street is a superior planning outcome that will not be realised without the redevelopment of the Site.
4. The redistribution of floor space from the Victoria Avenue frontage on Levels 2- 6 will be absorbed within the envelope of the building and result in a reduction to the overall FSR when compared to the approved development.
5. The impacts of the Proposed Development on adjoining or nearby properties in terms of disruption of views, loss of privacy, overshadowing or visual intrusion are almost identical to the existing building and Approved Development on the Site.
6. The variation to the FSR development standard in the Proposed Development, reduces the extent of the variation in the Approved Development and also reduces the built form fronting Victoria Avenue to ensure impacts on adjoining properties are minimised. The Proposed Development does not introduce any new elements that will impact on the amenity of neighbouring properties over and above the existing building or the Approved Development. The Proposed Development suitably minimises the impacts on disruption of views, loss of privacy, overshadowing and visual intrusion of adjoining and nearby properties.
7. The Site is zoned B3 Commercial Core and the Approved Development reflects the intended land use and mixed use development anticipated by the planning controls. When considering the context of the B3 Commercial Core, the Chatswood CBD is characterised by an eclectic range of buildings, densities and heights where the Proposed Development will not appear out of context or visually jarring. In this regard, the character can be informed by the existing and Approved Development, both of which exceed the FSR and height of buildings standards. The proposed density and the overall appearance of bulk and scale of the proposal is "managed" when compared to the existing building and suits the B3 Commercial Core zoning.
8. Given the highly accessible location of the Site, the intensification of employment-generating floor space and residential apartments on the Site will encourage future occupants and visitors to utilise public and active transport modes when travelling to and from the Site. Thus, the Proposed Development provides a sustainable high density development.
9. The retention of residential uses on the upper floors (albeit reduced from 15 to 14 apartments) will provide for an increased population base in the Chatswood CBD to patronise the retail business and commercial offerings in the Chatswood CBD, thereby adding to the vibrancy and vitality of the centre.
10. The provision of greater retail floor space in the Proposed Development provides for a better quality of retail floor space when compared to the Approved Development. Accordingly, the Proposed Development, will achieve a greater quantum of high quality retail floor space on the Site when compared to the existing building and Approved Development.
11. The Proposed Development will provide rooftop communal open space for residents consistent with the Approved Development. The increased setbacks from Level 2 to Victoria Avenue will also provide for key break out spaces for non-residential floor space that will enhance the amenity of workers.
1. The parties are also satisfied there are sufficient environmental planning grounds to justify the contravention of the FSR standard for reasons contained in the Written Request, that may be summarised as follows:
1. The Proposed Development reduces the quantum of GFA when compared to the existing building and Approved Development.
2. The Proposed Development will reduce the FSR of the Site and seeks to reconfigure and repurpose the approved FSR.
3. The Proposed Development will give better effect to the objectives by strengthening the commercial offerings at the periphery of the commercial core of the Chatswood CBD.
4. The Proposed Development will provide a superior built form by redistributing FSR from the Victoria Avenue frontage for Levels 2-6 within the building envelope. The Proposed Development creates a modulated built form that is generally consistent with the planning controls. That is, a two storey podium to Victoria Avenue with the tower element setback approximately 5m behind. The Proposed Development will be compatible with the scale of other buildings on Victoria Avenue and enhance the pedestrian environment. In addition, the Proposed Development enhances the visual appearance of the highly visible north and east elevations of the building by presenting a contemporary design to the public domain.
5. The Proposed Development enables the adaptive reuse of a dated building nearing the end of its economic life to provide a high quality modern development that will enhance the visual quality and amenity of the streetscape.
6. The FSR variation will not have any material impact, which arises as a consequence of the variation, on the amenity or the environmental values of surrounding properties, the amenity of future building occupants and on the character of the locality.
7. The development will not give rise to any adverse traffic and parking impacts on the local road network, despite the FSR non-compliance. The reconfiguration and redistribution of the Approved Development provides a number of land uses that are anticipated by the zoning and provide a better spatial and amenity outcome when compared to the Approved Development.
1. Clause 4.6(4)(a)(ii) requires that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular standard (relevantly being cll 4.3, 4.3A and 4.4 of the WLEP) and the objectives for development within Zone B3. The parties are satisfied and I accept that the Proposed Development is in the public interest and is consistent with the objectives of the Zone B3 for reasons which can be summarised as follows:
1. The Proposed Development provides a range of retail and commercial tenancies, alongside city living apartments that are consistent with the desired future character of this part of Chatswood CBD.
2. The Proposed Development increases the amount of high quality employment-generating floor space on the Site.
3. The Proposed Development is located 530m from Chatswood Railway and Metro Station, Chatswood Bus Interchange and bus stops on Victoria Avenue adjacent to the Site. The Site has access to high frequency public and active transport modes and also provides a quantum of bicycle and parking spaces.
4. The Proposed Development utilises an outdated existing building to provide for an increase in high quality retail and commercial floor space on the Site, as well as city living apartments, which are encouraged by the applicable planning controls and compatible with surrounding land uses.
5. The Proposed Development maximises the active frontages to both Victoria Avenue and Neridah Street on all levels of the development to enhance the pedestrian environment adjacent to the Site and improves passive surveillance to streets surrounding the Site.
1. For the reasons stated above, I find the Written Request to vary the FSR standard should be upheld.
2. Clause 4.6(4)(b) of the WLEP also requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.
3. In Planning Circular PS20-002 dated 5 May 2020, it was advised that consent authorities can assume the Planning Secretary's concurrence to vary development standards pursuant to cl 4.6 where a variation does not exceed 10% or relates to a non-numerical standard. The parties accept that concurrence of the Secretary cannot be assumed in these proceedings.
4. Notwithstanding the above, s 39(6) of the LEC gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.
5. The contravention of the FSR standard (cl 4.4 of the WLEP) in the Proposed Development does not raise any matter of significance for State or regional environmental planning, and there is a public benefit served by upholding the Written Request for the reasons set out above.
Draft Willoughby Local Environmental Plan
1. The Draft Willoughby Local Environmental Plan (Draft LEP) was publicly exhibited from 5 March 2022 to 7 June 2022.
2. The Draft LEP aims to:
1. Provide substantial increases in heights and floor space ratios in Chatswood to create a vibrant and confident central business district.
2. Consolidate Chatswood's position as one of Sydney's top 10 suburban office markets.
3. Ensure that new developments are of excellent design and incorporate green landscaping, with strong overall sustainability credentials.
1. The parties agree and I am satisfied from the evidence that the DA is consistent with the Draft LEP.
[4]
State Environmental Planning Policy (Transport and Infrastructure) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Site, and I am satisfied that the Proposed Development is not inconsistent with the provisions of the Transport and Infrastructure SEPP.
The Pacific Highway, Penshurst Street, Willoughby Road and Boundary Road are classified as State Roads and Mowbray Road is classified as a Regional Road. Victoria Avenue and Neridah Street are local, unclassified roads.
The above is confirmed in the Traffic and Parking Assessment Report prepared by Varga Traffic Planning dated 3 November 2021 (at Tab 22 of the Class 1 Application filed on 17 May 2022).
The Proposed Development does not have a frontage to a classified road. Accordingly, I am satisfied that s 2.119 of this SEPP does not apply.
[5]
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the Site and the Proposed Development.
The DA relies upon a Preliminary Site Investigation prepared by Martens dated 15 December 2022 (PSI) which confirms that the Site is suitable for the Proposed Development and makes recommendations that certain works are completed so that contamination risks remain low and acceptable during, and post construction works.
The PSI recommends:
1. Preparation and implementation of a Construction Environmental Management Plan (CEMP) for the construction phase of the project. The CEMP is to include protocols to address any unexpected finds which may be encountered during targeted investigation works for On-site Stormwater Detention (OSD) and lift shaft footing installation.
2. Decommissioning and removal of the above ground diesel tank (and associated infrastructure) to be undertaken by a suitably licenced contractor in accordance with relevant SafeWork NSW and NSW EPA guidelines. Following removal, a tank removal validation report to be prepared by a suitably qualified environmental consultant.
3. Undertaking of a formal waste classification assessment to ensure that all spoil generated during excavation work is classified and disposed of in accordance with NSW EPA Waste Classification Guidelines (November 2014).
The parties are satisfied that they have adequately considered the contamination status of the site and the recommendation that the site can be made suitable for the proposed development in accordance with s 4.6 of the Resilience and Hazards SEPP. I accept that to be the fact on the basis of the recommendations in the PSI, and appropriate conditions of development consent that have been imposed (being, conditions 1 and 80),
[6]
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies to the Proposed Development.
I am satisfied that BASIX certificate no. 1242934M_02 dated 13 December 2022 (listed at Schedule A) has been prepared by Credwell Energy in accordance with the BASIX SEPP and the EPA Regulation.
[7]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Site.
The parties agree that the Proposed Development does not seek consent for the removal of any existing trees or vegetation and I am satisfied from the evidence it is consistent with the requirements and objectives of this SEPP.
Chapter 10 of this SEPP as at 20 November 2022 (prior to its repeal on 21 November 2022) also applies to the land as:
1. the land is within the Sydney Harbour Catchment; and
2. the former provisions continue to apply to an application for development consent lodged, but not finally determined, before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (s 6.65 of the Biodiversity and Conservation SEPP).
I am satisfied that the Proposed Development is not inconsistent with the provisions or objectives of Ch 10 of this SEPP.
[8]
State Environmental Planning Policy No 65 - Design Quality of Residential Flat
[9]
Buildings
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings 2002 (SEPP 65) applies to the Site and the Proposed Development.
Clause 30(2) provides that development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to -
(a) the design quality principles, and
(b) the objectives specified in the Apartment Design Guide for the
relevant design criteria.
Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.
The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65.
I am satisfied that the Design Verification Statement provided by Mr Tony Leung (Arch Reg No. 7133) dated 22 December 2022 (listed at Schedule A) is in a complying form and adequately demonstrates that the development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide.
[10]
Conclusion
The parties have agreed on conditions of consent which I accept.
Having regard to all of the above 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. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
[11]
Notes
The Court notes that:
1. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).
2. The Respondent has approved the Applicant amending the development application under clause 55 of the Environmental Planning and Assessment Regulation 2000.
3. The Applicant agrees to pay the Respondent's costs in the agreed sum of $30,000 in full and final settlement of costs in the proceedings.
4. The parties confirm that the amended development application has been uploaded to the NSW Planning Portal on 18 January 2023, 3 March 2023 and 21 March 2023.
[12]
Orders
The Court orders that:
1. The appeal is upheld.
2. Development Application No. DA2022/95 (as amended) for alterations and additions to the retained part of the existing building to provide a mixed use building with retail on Ground Floor, Level 1 and Level 3, and residential apartments on Levels 3 to 6, above ground carparking, reduction in the number of apartments from 15 to 14, alterations to the rooftop communal open space and relocation of the stair and lift core and lot consolidation is approved, subject to the conditions of consent at Annexure A.
3. The Applicant's amended written request under clause 4.6 of the Willoughby Local Environmental Plan 2012 (WLEP) prepared by Planning Ingenuity Pty Ltd and dated 11 January 2023, seeking a variation of the development standards for height under clauses 4.3 and 4.3A of the WLEP, is upheld.
4. The Applicant's amended written request under clause 4.6 of the WLEP prepared by Planning Ingenuity Pty Ltd and dated 23 February 2023, seeking a variation of the development standard for Floor Space Ratio under clause 4.4 of the WLEP, is upheld.
[13]
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Decision last updated: 13 June 2023
Parties
Applicant/Plaintiff:
Aplus Architecture Pty Ltd trading as Aplus Design Group