Aplus Architecture Pty Ltd v Camden Council

Land and Environment Court (NSW)|2022-07-01

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA/2021/1789 (DA) by Camden Council.
The DA, as amended, seeks consent for the consolidation of five lots into one, demolition of existing structures and construction of a four storey mixed use development and associated matters at 8 - 10 Queen Street and 5 - 9 Coghill Street, Narellan (Lot 1 in DP 507300, Lot 1 in DP 813217, Lots 73 and 75 in DP 752045 and Lot 74 in DP 758753) (site).
In regard to the amendments, I note the advice of the parties provided within the documentation filed with the Court on 12 September 2022, that: 1. Camden Council, as the relevant consent authority, has agreed to the amendment of the application (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) to accord with the plans and documents at Condition 1.0(2) of Annexure A. 2. The amendments were lodged on the NSW planning portal on 9 September 2022. 3. The Applicant has subsequently filed the amendments with the Court on 12 September 2022.

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held, initially, on 1 July 2022, and at which I presided. After more time was given, the parties have filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

Jurisdiction

This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed statement of jurisdictional reasons provided to the Court on 12 September 2022. Regarding jurisdiction, and noting this advice, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

In regard to Ch 4 (concerned with remediation of land) and cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development.
In regard to this, I am advised that the Applicant has submitted a Preliminary (Stage 1) Site Contamination and Salinity Investigation Report dated 10 December 2021 (PSI), a Detailed Site Investigation Report dated 8 August 2022 (DSI) and a Remediation Action Plan dated 12 August 2022 (RAP). On the basis of these reports and agreed conditions of consent, I am satisfied that cl 4.6 of the SEPP Resilience and Hazards has been addressed and the land will be made to be suitable for the development.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure)

Section 2.122 provides that applications involving traffic generating development, in specified circumstances, including where development involves 200 or more car parking spaces, be sent to Transport for NSW (TfNSW) for comment. I am advised that the Respondent has given written notice to TfNSW and considered the related submissions and the Respondent is now satisfied that the Amended DA is acceptable in regard to the matters at s 2.122.
Sections 4.7 and 4.9 of the SEPP Transport and Infrastructure require development within or, relevantly, involving excavation below or adjacent to, a future infrastructure corridor be sent to TfNSW for concurrence. The Respondent has advised TfNSW of the proposal and TfNSW has responded by correspondence dated 10 February 2022. Certain requirements of TfNSW have been adopted and incorporated into the agreed conditions of consent (see condition 1.0(1)). I too have taken into consideration the correspondence from TfNSW and the requirements of ss 4.7 and 4.9 have been met.
The DA was referred to Endeavour Energy for comment pursuant to s 2.48. I am advised no concerns were raised.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

Chapter 9 is concerned with the Hawkesbury-Nepean River and applies to the Site. Sections 9.4 and 9.5 contain provisions that must be considered in assessing a development application such as the Amended DA. The parties' jurisdictional statement provides commentary on how the relevant general planning considerations and the specific planning policies and related recommended strategies considerations have been taken into account in the assessment of the DA. Through this advice, I too have taken these matters into consideration.

Camden Local Environmental Plan 2010 (CLEP)

I accept the advice of the parties that the proposal is permissible in the subject B2 Local Centre zone. I have had regard to the zone objectives as required under cl 2.3(2). Demolition is permissible with consent under cl 2.7.
The proposal would contravene cl 4.3 relating to maximum building height. This contravention is considered below.
Clause 5.21 is concerned with flood planning. The parties advise that the Applicant has provided additional flood studies and reports as part of the Amended DA. The Respondent advises that it is satisfied that the Amended DA meets the requirements of subcl 5.21(2). On this advice, I too am satisfied in that regard.
Clause 7.4 is concerned with earthworks. I am advised that the Applicant has provided a Report on Preliminary Geotechnical Assessment prepared by Douglas Partners dated 17 June 2022, a preliminary site investigation, detailed site investigation and remediation action plan, and appropriate conditions of consent have been applied. This means the consideration of the requirements of cl 7.4(3) has occurred.

Contravention of the building height development standard

The height of the Amended DA, being 15.65m exceeds the maximum height control of 15.5m pursuant to cl 4.3 of the CLEP. The Applicant has submitted a written request prepared by HDC Planning dated 28 July 2022, pursuant to cl 4.6, seeking to vary the development standard.
Under cl 4.6(4)(a) a consent authority must form two positive opinions of satisfaction if the facilitative powers of cl 4.6(2) are to be enlivened. The first is that the applicants' written request has adequately addressed the matters required to be addressed by cl 4.6(3). These matters are: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether compliance is unreasonable or unnecessary in the circumstances of the case

The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of cl 4.3 are as follows: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development, (c) to minimise the adverse impact of development on heritage conservation areas and heritage items..
The written request successfully demonstrates that the amended proposal achieves the objectives of the development standard by showing how: (a) design input has informed the proposed building envelope resulting in a form that responds to the site topography and flood affectation, while respecting adjoining allotments and not unreasonably impacting on their development potential, thus providing for compatibility with the existing and desired future character of the locality, (b) the proposal does not impact on views or outlook or cause unreasonable levels of overshadowing to adjoining premises or unreasonable privacy concerns, and (c) does not impact on the heritage values of any items or conservation areas.

Whether there are sufficient environmental planning grounds

The written request argues that (p2): if the variation is not approved there will be one of two adverse environmental planning consequences. Either, the ground level would be located below the flood planning level and would require alternative, but less desirable and less certain flood prevention methods. Or, the height of the development would need to be reduced by one story. The first alternative leads to an inferior design response to flood planning and the second option derogates from Objective 1.3(c) of the EPA Act because the loss of one storey from the building as a response to a 0.15m non-compliance would not be orderly and economic development. The grant of development consent with the variation to the height of buildings development standard will avoid both of those outcomes.
These grounds are sufficient in the circumstances. Here I also note the commentary in the written request that the exceedance is limited to a small portion of the roof, lift overrun and plant room, generally not discernible from neighbouring sites and the public domain.
I am satisfied that the applicants' written request has adequately addressed the matters required to be addressed by cl 4.6(3): (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether in the public interest

The second positive opinion of satisfaction relating to the enlivening of the facilitative powers of cl 4.6(2) is that the proposed development will be in the public interest because the development is consistent with the objectives of the contravened development standard and the relevant zone. This finding of satisfaction is a direct one for the consent authority, or in this case the Court.
I adopt the reasoning contained in the written request to find that the development is consistent with the objectives of the contravened development standard (ie cl 4.3).
The zone objectives are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that mixed use developments present an active frontage to the street by locating business, retail and community uses at ground level. • To minimise conflict between land uses within the zone and land uses within adjoining zones. • To enable other land uses that are complementary to and do not detract from the viability of retail, business, entertainment and community uses within the zone.
The proposal would satisfy each of the zone objectives. This is because this proposal would through its scale and the particulars of its provision directly provide for a relevant range of commercial and other land uses to meet community needs and provide for local employment in this accessible location in Narellan centre. The proposal would also reasonably address concerns relating to adjoining land and is designed to provide a fully active street frontage to Queen Street.
With the above findings, the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Conclusion in regard to development standard contravention

On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, but should still consider the matters in cl 4.6(5). I have considered these matters and find nothing of significance arises.
In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) is enlivened have been met. Consequently, there is power for the Court to grant consent to the proposal notwithstanding the contravention of the building height standard at cl 4.3.

Other provisions of s 4.15(1) of the EPA Act

The parties have provided me with advice in regard to certain applicable provisions of Camden Development Control Plan 2019. I have considered this advice. The requirements of s 4.15(1)(a)(iii) of the EPA Act have been met.
The parties have advised me on the submissions made after notification of the proposal both prior to and following the amendments. I have taken into consideration these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act. Here I particularly note the commentary in the jurisdictional statement in relation to the question of site isolation, and the manner in which this matter has been resolved, mindful of the Court's planning principle in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 at [17] - [19].
I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment beyond the commentary in this judgement. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Orders

The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away by the amended development application referred to at [3] above, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the amount of $6,000 within 28 days from the date of these orders. 2. The Applicant's written request prepared by HDC Planning dated 28 July 2022, pursuant to clause 4.6 of the Camden Local Environmental Plan 2010 ("CLEP"), to vary the height of buildings development standard in clause 4.3 of the CLEP is upheld. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. DA/2021/1789 for the consolidation of five lots into one, demolition of existing structures and construction of a four storey mixed use development and associated works at 8 - 10 Queen Street and 5 - 9 Coghill Street, Narellan (Lot 1 in DP 507300, Lot 1 in DP 813217, Lots 73 and 75 in DP 752045 and Lot 74 in DP 758753), subject to the conditions of consent in Annexure A.

Commissioner of the Court 78417.22 (Annexure A) (323339, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2022

(2007) 156 LGERA 446

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Judgment (17 paragraphs)

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