CE Waters Pty Ltd as Trustee for CE Waters Development Trust v North Sydney Council

Land and Environment Court (NSW)|2023-10-31|Before: Preston CJ

JudgmenT

COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by North Sydney Council (Council) of development application No 42/2023 (the DA).
The DA seeks approval for alterations and additions to the mixed use development at 12-14 Waters Rd, Neutral Bay NSW 2089 (the Site), which is already approved under development consent no. 92/2021 (Existing Consent) and is presently under construction. The Existing Consent has been modified on six occasions. The DA also seeks that a condition be imposed under section 4.17(1)(b) and section 4.17(5) of the EPA Act requiring the Existing Consent to be modified by means of a Notice of Modification under section 67 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
The parties reached an agreement prior to the hearing and requested the Court to determine the appeal by way of Consent Orders filed on 10 October attaching the agreed Conditions of Consent [Ex 4]. As the Commissioner assigned to hear this matter, I am required to be satisfied that the agreed position reached is within the Court's jurisdiction to make: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, per Preston CJ at [16]; McMillan v Taylor [2023] NSWCA 183, per Basten AJA at [58].
I was assisted by the parties Agreed Submissions (Submissions) which presented an agreed set of facts and set out relevant jurisdictional matters to support the proposed Consent Orders seeking the Court to uphold the appeal and grant development consent to the DA No 42/2023 with conditions at Annexure A. The power of the Court to give effect to the parties Consent Orders is pursuant to section 17(d) of the Land and Environment Court Act 1979 (LEC Act) and sections 4.16(1)(a) & 4.17(1)(b) of the EPA Act.

The DA and the Appeal

The development approved by the Existing Consent is described in the notice of determination relevantly as "demolition of existing buildings, excavation and construction of a five-storey shop top housing (mixed-use) development with apartments on the upper levels, with commercial/retail tenancies below and basement parking". It includes 35 dwellings comprising 5 x 1 bedroom, 14 x 2 bedroom and 16 x 3 bedroom apartments and 1,954m2 of commercial gross floor area.
The DA seeks consent for the following additions to that approved building: 1. an additional storey comprising 2 x 2 bedroom apartments and 3 x 3 bedroom apartments, resulting in a development that is 6 storeys in total; and 2. new rooftop amenities comprising communal open space and a swimming pool, access, services and amenities, as well as private open space for apartments 5.02, 5.03 and 5.04.
The additional storey and rooftop amenities were non-compliant with the height development standard applying under clause 4.3 of North Sydney Local Environment Plan 2013 (NSLEP 2013). However, as detailed below, a site-specific planning proposal allowed by decisions of the Sydney North Regional Panel has resulted in an increase in the permitted height for the subject land, such that the proposed new height is now compliant.
The DA also seeks development consent for the following consequential alterations to the building as approved by the Existing Consent: 1. Basement Levels 4-5: reconfiguration of parking levels to address parking, accessibility and storage requirements associated with the additional level; 2. Levels 1-2: Nomination of two one-bedroom apartments as adaptable to provide consistency with the approved DA adaptable apartment types, with the additional apartments on Level 5 designed to be larger two and three bedroom apartments; 3. Level 4: Removal of internal stairs to rooftop open space as this access is no longer achievable from the dwellings on this level; and 4. Redistribution of the car parking to provide 47 commercial car parking spaces and 37 residential car parking spaces.
The mixed use development resulting from the DA and the proposed modifications to the Existing Consent will comprise: 1. 1,954m2 of commercial floor space; 2. 37 residential apartments; 3. basement parking for 89 car spaces (including visitors) and 10 motorcycle spaces; and 4. associated loading and service facilities.

Proposed Condition A1 requiring modification of the Existing Consent

Condition A1 of the Agreed Conditions requires modification of the Existing Consent to reflect those alterations in the manner provided for by sections 4.17(1)(b) & 4.17(5) of the EPA Act and section 67 of the EPA Regulation.
Specifically, Condition A1 requires the Applicant to lodge a notice of modification of the Existing Consent with the Respondent in accordance with section 67 of the EPA Regulation.
Under s 67(3) of the EPA Regulation, that notice will take effect when the Respondent gives written notice of receipt.

The Site and the Statutory Controls

The site is situated in the MU1 Mixed Use Zone under the NSLEP 2013 and is further described at paragraphs 5-19 of the Respondent's Amended Statement of Facts and Contentions filed on 13 September 2023 (Ex 1 Amended SOFAC).
The statutory controls applicable to the Site are listed at paragraphs 20-28 of the Amended SOFAC. Relevant extracts from State Environmental Planning Policies, the NSW Department of Planning Apartment Design Guide 2015, the NSLEP 2013 and the North Sydney Development Control Plan 2013, were considered by the Respondent during its assessment of the DA.
The parties agree that the development proposed in this DA accords with those controls.

Chronology of the DA and the proceedings

The DA was lodged with the Respondent on 20 February 2023.
The DA was notified by the Respondent between 10 and 24 March 2023. The Respondent received a total of six submissions. The issues raised in those submissions are summarised in paragraph 46 of the Amended SOFAC, and copies are included at Tab 10 of the Agreed Bundle.
These Class 1 proceedings were commenced on 4 April 2023 and on 14 July 2023 a s 34 conference was convened by the Court but no agreement was reached and the Commissioner terminated the s 34 conference.
On 10 August 2023, leave was granted to the Applicant to rely on amended plans and materials. Those amended plans and materials were publicly notified by the Respondent from 18 August to 1 September 2023. A total of two submissions were received.
The Amended SOFAC was filed on 13 September 2023. As compared to the original SOFAC filed on 18 May 2023, the Amended SOFAC struck out Contentions 3 (Solar access / overshadowing), 4 (View loss) and 5 (Apartment mix), and amended Contentions 1 (Height) and 2 (Bulk and scale) to narrow the scope of those contentions in light of the plan amendments. Following the filing of the Amended SOFAC, the issues remaining in contention related to the fact that the Applicant's Planning Proposal PP-2021-7492 (Planning Proposal) had not yet been finalised.
A copy of the Planning Proposal, as exhibited in January 2023, was before the Court. The Planning Proposal sought to: 1. increase the maximum building height applying to the Site from 16m to 22m; 2. introduce a site-specific provision to permit exceedance of the 22m height control by 2m for lift overruns and associated structures necessary to provide lift access to communal rooftop space, balustrades or other safety barriers to ensure the safe use of the space, and roof-top plant and equipment; and 3. increase the minimum non-residential floor space ratio under clause 4.4A of the NSLEP 2013 on the site from 0.5:1 to 1.2:1.
The amendment to the NSLEP 2013 sought via the Planning Proposal was gazetted on Friday, 15 September 2023.
Shortly following gazettal of that amendment to the LEP, at the directions hearing on 27 September 2023 the Respondent indicated, and the Court noted for the record, that the Respondent no longer pressed any of the contentions included in the Amended SOFAC.
The Court listed the matter for a hearing on 31 October 2023. The parties indicated that this would proceed by way of a consent orders hearing, subject to the parties filing an agreed set of proposed consent orders.
The parties' agreed form for the proposed consent orders and conditions of consent were filed on 10 October 2023.
The Respondent notified objectors of the proposed orders and conditions from 12 October 2023 to 26 October 2023.

Assessment under s 4.15 of the Environmental Planning and Assessment Act 1979

The consent authority for the DA is North Sydney Council (per section 4.5(d) of the EPA Act).
In its consideration of the DA, the Council has considered all matters of relevance to the development, the subject of the DA, identified in s 4.15 of the EPA Act. Specifically, the Council has considered: 1. The provisions of the NSLEP 2013 and relevant State Environmental Planning Policies (section 4.15(1)(a)(i)); 2. The provisions of NSDCP 2013 (section 4.15(1)(a)(iii)); 3. The provisions of the Applicant's voluntary planning agreement accompanying the Planning Proposal, which the Applicant as developer has entered into under section 7.4 of the EPA Act (section 4.15(1)(a)(iiia)); 4. Relevant provisions of the EPA Regulation (section 4.15(1)(a)(iv)); 5. The likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality (section 4.15(1)(b)); 6. The suitability of the site for the development (section 4.15(1)(c)); 7. All submissions made in respect of the DA (section 4.15(1)(d)); and 8. The public interest (section 4.15(1)(e)).
Having assessed those matters, the parties agree that all jurisdictional pre-requisites to the grant of development consent to the DA have been met, and that it is lawful and appropriate to grant the consent having regard to the whole of the relevant circumstances, including the proposed conditions.

Conclusion & Public Participation

For the reasons set out above and based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that the changes to the mixed use development resulting from the DA and the proposed modifications to the Existing Consent pursuant to Condition A1 are within the Court's jurisdiction to approve and I accept the parties agreed position. 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.
I am also satisfied that the neighbouring objectors and owners were appropriately notified and given an opportunity to make submissions to the Court. This included a gentleman who attended the site inspection and took the Court and the parties into his apartment across the road to observe the potential view loss from the balcony. I am satisfied that all reasonable concerns of neighbouring objectors have been addressed by the Applicant and the Council in reaching the agreed position and there are no jurisdictional impediments to the making of the filed Consent Orders with agreed conditions of consent at Annexure A.
The appeal should be upheld and Development Consent to DA No 42/2023 (as amended) granted.
The Court notes: 1. Each party will bear its own costs of the proceedings.

Orders

The Court orders: 1. The appeal is upheld. 2. Development Consent is granted to Development Application No. 42/2023, as amended, for alterations and additions to an approved mixed use development, at 12 - 14 Waters Road, Neutral Bay NSW 2089, comprising an additional level of residential accommodation and rooftop amenities and open space, subject to the conditions set out in Annexure A. 3. All exhibits are returned, except for Exhibit B.

Annexure A (556973, 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: 16 November 2023

At a glance

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Judgment (9 paragraphs)

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Cases Cited (2)