The application is accompanied by a BASIX certificate (Cert No. 1347964M_03, dated 28 February 2024) prepared by ESD Synergy Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.
The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.
While the proposed development has not been identified as integrated development under s 4.46 of the EPA Act, a Dewatering Management Plan prepared by EI Australia dated 28 October 2022 notes the operation of the Water Management Act 2000 in seeking approval for dewatering activities on the site.
On 13 March 2023, Water NSW issued general terms of approval, noting that the Applicant must obtain approval from Water Supply Work after any consent is granted and before the commencement of any work or activity.
The terms provided by Water NSW are incorporated into the agreed conditions of consent.
[4]
Consistent with the terms of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) I have given consideration to the potential contamination of the site.
The Applicant relies upon a Detailed Site Investigation prepared by EI Australia dated 10 October 2022 that concludes the site is suitable for the purpose of the development proposed to be carried out.
[5]
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.
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.
The Court notes that:
[6]
(1) Tweed Shire Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA 22/0795, in accordance with the following documents which were filed with the Court on 29 February 2024:
(a) Architectural Plans, Revision K, dated 27 February 2024, prepared by Tony Owen Architects Pty Ltd;
(b) BASIX Certificate 1347964M_03 prepared by ESD SYNERGY PTY LTD and dated 28 February 2024.
[7]
(1) Leave is granted to the Applicant to amend Development Application No. DA 22/0795, and rely on the Further Amended Application, so amended by the following:
(a) Architectural Plans, Revision K, dated 27 February 2024, prepared by Tony Owen Architects Pty Ltd;
(b) BASIX Certificate 1347964M_03 prepared by ESD SYNERGY PTY LTD and dated 28 February 2024.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent in the sum of $7,500 within 28 days of this order.
(3) The Applicant's written request pursuant to clause 4.6 of Tweed City Centre Local Environmental Plan 2012 (TCCLEP) seeking to justify contravention of the height of building standard under clause 4.3 of the TCCLEP has been considered and the necessary opinion of satisfaction has been formed under clause 4.6(4) of TCCLEP.
(4) The appeal is upheld.
(5) Development consent is granted to Development Application No. DA 22/0795 for consolidation of two (2) allotments, construction of a nine-storey residential flat building containing three basement levels and 53 apartments; car parking, civil works and landscaping at premises known as 41 and 43 Boyd Street, Tweed Heads, subject to the conditions of consent in Annexure 'A'.
COMMISSIONER: An eight storey residential flat building is proposed on land in Boyd Street, Tweed Head in respect of which, the Applicant in these proceedings, Mr Harry Ghamraoui, lodged Development Application No. DA22/0795 (the original DA) with Tweed Heads Council (the Respondent) on 9 December 2022.
On 6 February 2023, as the original DA was otherwise undetermined, the Applicant appealed the deemed refusal in accordance with s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in class 1 of the Court's jurisdiction.
On 10 October 2023, the Court granted the Applicant leave to rely upon amended plans that had the effect of amending the original DA.
On 2 November 2024 the Respondent filed an Amended Statement of Facts and Contentions that confirmed the resolution of all contentions.
As a result of joint conferencing between experts shortly after on the Amended Development Application (Amended DA) in the disciplines of town planning, stormwater and flooding, the parties agree that contentions pressed by the Respondent in this matter have been resolved.
Accordingly, while the matter was initially listed before me for hearing, the parties sought the matter be re-allocated by the Court under s 34 of the Land and Environment Court Act 1979 (LEC Act).
On 29 February 2024, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the LEC Act at which I presided.
At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was submitted to the Court on 1 March 2024, in accordance with s 34(10) of the LEC Act.
The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that must be satisfied before this function can be exercised.
For the reasons that follow, I am satisfied that the jurisdictional prerequisites to the grant of development consent are met.
The site, and surrounding land to the north, east and west, is located within the R3 Medium Density Residential zone, according to the Tweed City Centre Local Environmental Plan 2012 (TCCLEP). Land located to the east of the site is zoned B4 Mixed Use.
Residential flat buildings are a form of development permitted with consent by virtue of not being otherwise specified in item 2 or 4 of the relevant Land Use Table at cl 2.7 of the TCCLEP.
The objectives for development in the R3 zone are:
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The height of buildings development standard at cl 4.3 of the TCCLEP provides for a maximum height of 28m on the site.
However, the provisions of cl 6.10(4) of the TCCLEP modify the terms by which the height of buildings standard can be enlivened, by operation of the following:
(4) Development consent must not be granted to the following development on land to which this Plan applies unless an architectural design competition that is consistent with the Design Excellence Guidelines has been held in relation to the proposed development -
(a) development having a capital value of more than $2,000,000 on land identified as "Key Sites" on the Key Sites Map,
(b) development in respect of a building that is, or will be, higher than 35 metres,
(c) development for which the applicant has chosen to have such a competition.
The proposal is not identified on the Key Sites Map (subcl (4)(a)), and the Applicant has chosen not to have a design competition (subcl (4)(c)). Instead, the proposal is less than 35m in height which has the effect of removing the prohibition on the grant of consent in accordance with subcl (4)(b) of the TCCLEP.
The experts agree, as I do, that the proposed development does not exceed 35m in height.
However, the proposed development exceeds the height of 28m, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the TCCLEP to vary the height standard (the written Request).
The written request identifies the maximum height of the building to measure 29.06m at the north western corner of the building, and at the level of the roof. The exceedance is therefore 1.06m.
In general terms, the written request attributes the exceedance to two primary factors:
1. Firstly, as the site is subject to flooding, the parties' experts in civil engineering agree it is necessary to raise the ground floor to the Flood Planning Level (FPL) of RL 3.1m Australian Height Datum (AHD) which contributes to the height exceedance.
2. Secondly, floor to floor heights of 3.2m in the amended DA conform to changes made to the National Construction Code (NCC), which exceed the height of 3.1m otherwise required by the Apartment Design Guide.
The written request asserts it is unreasonable or unnecessary to comply with the height standard at cl 4.3 of the TCCLEP because the objectives of the standard are achieved notwithstanding non-compliance with the standard.
The objectives of the height standard that are said to be achieved are as follows:
(a) to establish the maximum height for which a building can be designed,
(b) to ensure that building height relates to the land's capability to provide and maintain an appropriate urban character and level of amenity,
(c) to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities,
(d) to encourage greater population density in less car-dependant urban areas,
(e) to enable a transition in building heights between urban areas comprised of different characteristics,
(f) to limit the impact of the height of a building on the existing natural and built environment,
(g) to prevent gross overshadowing impacts on the natural and built environment.
The written request relies on the decision of Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 to assert objective (a) is met by establishing a height standard itself. Nevertheless, the height of the proposal achieves the objective when regard is had to additional provisions at cl 6.10 of the TCCLEP that permits buildings of greater height than is proposed.
In respect of objective (b), the written request relies on the decision of Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 to invoke existing development that includes development that exceeds the permitted height as well as applicable planning controls when determining the urban character and level of amenity that must be maintained by the development. The applicable controls permit development on the western side of Boyd Street up to 40.04m in height and development to the west of the site to be 31.46m in height. Development to the east of the site on Boyd Street is permitted to a height of 48.62m. As such, the proposed development at 29.06m is consistent with the desired future character for the area.
The site is located within the Tweed City Centre where support facilities are located, consistent with objective (c), is highly accessible and well served by public transport and public infrastructure within walking distance, consistent with objective (d).
For reasons similar to those at [25], the controls in the R3 Medium Density Residential zone, and B4 Mixed Use zone, permit building heights that vary from 34m to 49.5m and so the proposed development of 29.06m provides appropriate transition to such heights, consistent with objective (e).
The impact of the proposal's height is limited by the proposal achieving a nine-storey built form that is consistent with the number of storeys contemplated by the controls, and in side setbacks that are consistent with Part 4A of the Apartment Design Guide (ADG), and with s B2 of the Tweed Development Control Plan 2008 (TDCP). Further setbacks in upper storeys minimise impacts on the natural and built environment and on future development to adjoining sites by providing view corridors, demonstrating good solar access and maintaining appropriate separation distances. Deep soil area and provision of communal open space exceed the requirements of the ADG, and facilitate stormwater drainage. As such, objective (f) is achieved.
Shadow diagrams and solar analysis of the proposal in its context demonstrates neighbouring properties at 45 and 50 Boyd Street, and 44 Recreation Street to the west of the site continue to receive sunlight for at least 50% of the principal area of private open space between 9am - 3pm in mid winter, for a period of at least 3 hours, consistent with control 7(e) of the TDCP, which is consistent with objective (g).
Next the written request sets out four environmental planning grounds it considers sufficient to justify the contravening of the height standard. The four grounds are summarised as follows:
1. In terms similar to those at [21(1)], the site is subject to flooding and the ground floor of the building has been raised between 400mm and 850mm, in accordance with the joint recommendation of the civil engineering experts.
2. As a result of changes made to the NCC in 2019, all residential flat buildings are to be sprinklered, requiring additional space within a ceiling area to conform with the requirement of the ADG for ceiling heights of 2.7m. Furthermore, changes in the NCC in 2023 as to how slab setdowns are to be achieved also impact the achieving of those ceiling heights, requiring a greater floor to floor height than originally assumed, and which is yet to be reflected in either the ADG or the height controls within the TCCLEP.
3. The exceedance is minor, and will be largely indiscernible.
4. When visual privacy, overshadowing, view loss and visual amenity are considered, the proposal does not impose an unreasonable impact on adjoining or nearby properties.
Finally, the height request asserts consistency with the objectives of the zone, at [14], because the development provides housing in a range of unit types including one, two and three-bedroom units within close proximity to facilities and services that meet the day to day needs of residents.
I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the TCCLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R3 Medium Density Residential Zone.
Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the TCCLEP.
Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.
I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R3 zone.
In forming this opinion of satisfaction, I accept that the proposed development is substantially contained within the height plane at cl 4.3 of the TCCLEP, that is also capable of being set aside by operation of cl 6.10 of the TCCLEP, and where that exceedance is minor, recessed, and does not result in additional habitable floor space.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the TCCLEP and I find no grounds on which the Court should not uphold the written request.
Other matters of consideration of the TCCLEP
There is no dispute that the floor space ratio (FSR) of the proposal is less than the development standard of 2.5:1 permitted by cl 4.4 of the TCCLEP.
Clause 5.21 of the TCCLEP deals with flood planning. The site is identified with a Design Flood Level of RL 2.6m, a Flood Planning Level (FPL) of RL 3.1 AHD, and a Probable Maximum Flood (PMF) level of RL 5.7 AHD. A property flood report was prepared for each lot, and a Flood Emergency Response Plan (FERP) prepared by S&G Consultants Pty Limited and dated 8 August 2023. On reading the above documents, and of the Stormwater Concept Design prepared by SGC Consultants, and after having considered those matters at cl 5.21(3) of the TCCLEP, I am satisfied the development:
1. is compatible with the flood function and behaviour on the land, as it provides for a setback to permit overland flow to the north of the site to remain unimpeded;
2. will not adversely affect flood in a manner that results in increases to flood affectation due to onsite detention and treatment of water volume and quality;
3. considers the evacuation of people by existing evacuation routes in the surrounding area which, according to the FERP, includes access to land at a level above the PMF;
4. incorporates appropriate measure to manage risk to life in the event of a flood, and which will not adversely affect the environment or cause avoidable erosion, siltation because of the on site detention and water quality measures contained therein;
The site is identified as Class 2 Acid Sulfate Soils (ASS) on the relevant Map at cl 6.1(2) of the TCCLEP, and works are proposed below the natural ground surface. I accept the conclusions of the Acid Sulfate Soils Management Plan (ASS Plan), prepared by EI Australia dated 5 May 2023 that concludes ASS management is required by the development, of a kind set out in s 4 of the ASS Plan and incorporated in agreed conditions of consent.
Clause 6.10 of the TCCLEP applies to development involving the erection of a new building for which consent must not be granted unless the consent authority considers that the development exhibits design excellence.
The operative provision at cl 6.10 of the TCCLEP is found at subcl (2), in the following terms:
(2) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.
The means by which the opinion at subcl (2) is to be formed, is after consideration of those matters at subcl (3).
Clause 6.10(3) of the TCCLEP is in the following terms:
(3) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters -
(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,
(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,
(c) whether the development detrimentally impacts on view corridors,
(d) the requirements of the Tweed City Centre DCP,
(e) how the development addresses the following matters -
(i) the suitability of the land for development,
(ii) existing and proposed uses and use mix,
(iii) heritage issues and streetscape constraints,
(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,
(v) bulk, massing and modulation of buildings,
(vi) street frontage heights,
(vii) solar access controls,
(viii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity,
(ix) the achievement of the principles of ecologically sustainable development,
(x) pedestrian, cycle, vehicular and service access, circulation and requirements,
(xi) the impact on, and any proposed improvements to, the public domain.
The planning and urban design experts set out their agreement in a joint expert report filed with the Court on 30 January 2024. The agreement details the basis on which the experts agree that the contention is respect of design quality is resolved.
However, as shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga), it is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone. Instead, cl 6.10 prescribes a framework for deciding whether a development exhibits design excellence (Toga, at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).
For completeness, subcl (3)(d) requires that I have regard to the Tweed City Centre Development Control Plan (TCCDCP). The Respondent's bundle contains the Tweed Development Control Plan 2008 (TDCP), and a search of the Council's website reveals no Tweed City Centre Development Control Plan, but instead s B2 relates to the Tweed City Centre.
In forming an opinion that the proposed development exhibits design excellence, I have considered those matters at cl 6.10(3)(e) of the TCCLEP, assisted by the following documents:
1. Joint expert report prepared by the planning and urban design experts, including points of agreement set out in paras 3.1 - 3.18;
2. Design Report prepared by the architect Mr Tony Owen dated August 2023,
3. Letter titled 'Design Excellence Assessment' prepared by Mr Alan Cadogan dated 22 February 2024.
The Court's opinion is summarised as follows:
1. A high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved by the arrangement of what is described as a base, middle and top, a four-storey podium, varied parapet widths and elevational design that expresses internal functions with dividing walls and privacy screens.
2. The form and external appearance of the development will improve the quality and amenity of the public domain given the use of external tiles and a colour-impregnated render finish rather than paint finish. Additionally, 80% of the front setback is dedicated to soft landscaping, and the extent of deep soil and planter boxes contributes to the amenity of the public domain.
3. I accept the agreement of the planning experts who rely on photographs of the site, and the surrounding development to assert there are no significant view corridors that are detrimentally impacted by the proposal.
4. The requirements of the TCCDCP are considered in the Statement of Environmental Effects prepared by Creative Planning Solutions Pty Limited dated . To the extent the amended architectural plans vary from the assessment completed in preparation of the SEE, I accept there is an improvement in compliance with the provisions of the TCCDCP.