Loyito Pty Ltd v North Sydney Council

Land and Environment Court (NSW)|2021-09-06

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA337/20 (DA) by North Sydney Council (Council). The DA, as amended, seeks consent for demolition of an existing residential flat building and construction of a new residential flat building with basement parking at 20-24 Bray Street North Sydney (legally described as SP 13397), and alterations and additions to the adjoining single dwelling at 35 Kurraba Road Neutral Bay (legally described as Lot 101 DP 627484 and Lot 3 DP565786).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was initially convened on 6 September 2021. I presided over the conciliation conference. The parties sought further time on a number of occasions, subsequently, as further amending plans were prepared and ultimately notified to objectors.
After this additional time was allowed, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 2 February 2022.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if this 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 DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance in these proceedings, including through a jurisdictional statement dated 2 February 2022 (Jurisdictional Statement) and explained how jurisdictional matters have been or could be satisfied. Below I give consideration to the relevant issues, mindful of the Jurisdictional Statement.

State Environmental Planning Policy No. 55 -- Remediation of Land (SEPP 55)

Under cl 7(1) of SEPP 55, consent cannot be granted to the carrying out of any development on land unless the consent authority has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. Council has advised that it is satisfied the development site has a long history of continuous residential uses and had not been developed prior to its existing residential use, which suggests the development site is not subject to contamination. I have considered whether the land is contaminated and the evidence indicates it is not. The requirements of cl 7(1) are satisfied.

State Environmental Planning Policy No. 65--Design Quality of Residential Apartment Development (SEPP 65)

SEPP 65 brings forward certain requirements for this application, as does the Environmental Planning and Assessment Regulation 2000 (EPA Reg) in regard to it, relevantly: 1. Clause 50(1A) of the EPA Reg requires a development application that relates to residential apartment development to be accompanied by a design verification statement (DVS) which meets stipulated requirements. A DVS was prepared by Peter Smith (Registered Architect No 7024) of Smith & Tzannes Architects (filed 22 November 2021), explaining how the development addresses SEPP 65's design quality principles and demonstrating how the objectives of Parts 3 and 4 of the Apartment Design Guide (ADG) have been achieved. 2. Mindful of the requirements of cl 28(2) of SEPP 65, I have taken into consideration: the design quality of the development when evaluated in accordance with the design quality principles, and the ADG. Council advises there was no relevant design review panel in this instance. 3. Mindful of the advice of the parties, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria, addressing cl 30(2) of SEPP 65.

North Sydney Local Environmental Plan 2013

Below, jurisdictionally-relevant matters under North Sydney Local Environmental Plan 2013 (NSLEP) are considered.
20-24 Bray Street is zoned R3 Medium Density Residential and 35 Kurraba Road is zoned R2 Low Density Residential. I have had regard to the objectives of each of these zones, mindful of cl 2.3(2) of NSLEP.
Residential flat buildings are a permissible use now in the R3 Medium Density Residential zone in NSLEP, under Amendment 30 to NSLEP which came into force on 30 June 2021. At the time of lodgement of the application (21 December 2020) they were not. There is no savings and transitional provision included in Amendment 30. While there is such a provision at cl 1.8A of NSLEP, it does not apply (Wingecarribee Shire Council v De Angelis [2016] NSWCA 189). The proposed alterations and additions to the single dwelling at 35 Kurraba Road are permissible within the R2 Low Density Residential zone. In short, there is no dispute as to the permissibility of the proposal.
The site is subject to a maximum building height of 8.5m pursuant to cl 4.3 of the NSLEP. The Development Application, as amended, proposes a maximum building height of 19.4m, contravening the standard. This contravention is addressed separately below.
Clause 5.10 of the NSLEP, in regard to heritage conservation, is triggered with the proposal, with 35 Kurraba Road located within a heritage conservation area. A consent authority must, before granting consent under this clause in respect of the altering of a building within a heritage conservation area, consider the effect of the proposed development on the heritage significance of the heritage conservation area. In this instance, a Heritage Impact Statement was prepared by Weir Phillips Heritage and Planning (dated December 2000), and an addendum report referencing the amending plans was prepared dated 13 October 2021 (filed 22 November 2021), each finding the proposal would provide a sound outcome in heritage conservation terms. I have reviewed these documents and, as required in a jurisdictional sense, considered the effect of the proposed development on the heritage significance of the heritage conservation area.
Clause 5.21 of the NSLEP is concerned with flood planning. I accept the advice of the parties that the requirements of cl 5.21(2) are satisfied as a consequence of the findings of the Overland Flood Study and Flood Impact Report prepared by Alpha Engineering dated 8 October 2021 (filed 22 November 2021), the recommendations of which are adopted by way of consent conditions. I have also considered the matters listed at cl 5.21(3).
Clause 6.10 of the NSLEP is concerned with earthworks. I have considered the matters listed at cl 6.10(3) and note the advice of the parties that Council is satisfied that "appropriate measures will be adopted in accordance with the Council's requirements to ensure that the stability of adjoining properties is not compromised by the proposal". Council indicated it relies on the Geotechnical Investigation Report (Rev 2), prepared by Geo-Environmental Engineering dated October 2021, the recommendations of which are adopted by way of consent conditions.

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

The parties have provided me with advice in regard to the provisions of North Sydney Development Control Plan 2013, indicating relevant objectives are met. The requirements of s 4.15(1)(a)(iii) of the EPA Act, that I take into consideration the relevant development control plan provisions, have been met.
I accept the parties' submissions that the requirements of cll 92 and 93 of the EPA Reg, to the extent they are relevant, have been taken into account and addressed.
I also accept the parties' submissions, as included in the Jurisdictional Statement, and generally (in person), in regard to the attention to the likely impacts of the proposal and site suitability. I also have taken into consideration the likely impacts of the development and site suitability, as I am required to under subs 4.15(1)(b) and (c) of the EPA Act.
The parties advise the proposal was notified in accordance with requirements (original application notified between 15 and 29 January 2021, with amending material notified between 12 and 26 November 2021). Submissions were also made directly to the Court in the initial stage of conciliation. There were a considerable number of objections received, including from immediate neighbouring residents and landowners. The Council has advised me that it believes the amended application satisfactorily addresses the public submissions (Jurisdictional Statement p 6). I also have taken into consideration these objecting submissions, and the public interest more generally, as I am required to under subs 4.15(1)(d) and (e) of the EPA Act.

Maximum building height contravention

The Applicant is seeking an exception for the contravention of the maximum building height standard found at cl 4.3 of NSLEP. It seeks to engage the permissive powers available under cl 4.6(2) of the NSLEP.
The permissive power at cl 4.6(2) is subject to certain restrictions. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven them. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires the Court to make its own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. I note the parties jointly submit that the pre-requisites have been met.
In this instance, the Applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request (WR) was prepared by Andrew Darroch and was dated October 2021.
The height of buildings standard applying to the site is 8.5m. The maximum height of the proposed building, according to the WR, is 19.4m.

Whether compliance with the development standard is unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of NSLEP, the WR initially seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of NSLEP.
The objectives of cl 4.3 of NSLEP are as follows - (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area, (g) to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone E4 Environmental Living.
The written request satisfactorily demonstrates that the development achieves the objectives of cl 4.3 of NSLEP, notwithstanding the contravention. It does this:

With respect to objective (a), by showing how the development steps down the sloping land, following the natural gradient.
With respect to objective (b), by demonstrating proposed view sharing and retention, referencing the approach adopted by former Senior Commissioner Roseth in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140.
With respect to objective (c), by referencing "view from the sun" diagrams included in the application, showing that solar access is maintained to neighbouring properties and public spaces. This also shows that solar access is promoted for future development.
With respect to objective (d), by demonstrating how privacy is maintained for existing residents, and provided for in regard to future residents, through building design and siting along with identification of deep soil areas designated for "extensive" plantings, purposefully directed towards achieving privacy.
With respect to objective (e), by referring to matters of potential adverse impact, which might be thought of as indicators of incompatibility, and indicating how in this instance potential adverse impacts have been satisfactorily addressed.
With respect to objective (f), by describing the particular character of the local area, which already includes higher density forms, and demonstrating that the proposal is of a scale and density which accords with this; and that the proposal is of an appropriate scale and density in this setting as a consequence of the low levels of environmental harm it would bring.
With respect to objective (g), by noting that the objective is not seeking that all buildings within the zone are "1 or 2 storeys", and demonstrating that this objective is not prejudiced given the existing building on site is more than "1 or 2 storeys".

Whether sufficient environmental planning grounds

The written request also demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. It does this by showing how contextual considerations relating to the height contravention have been responded to in design terms. Of note, is the fact of the existing six storey building on site (height 17.66m). The WR highlights the proposal's increase to setbacks in areas of sensitivity, when compared to the existing building. It is shown how, generally, the northern building setback would increase when compared to the existing building, and the elements of the proposed building which exceed the existing building in height are setback further again, in terms of that sensitive direction. The WR joins this siting feature with other proposed design and landscaping features of the proposal to effectively demonstrate sufficient environmental planning grounds for the height contravention.

Public interest test

For a contravention to be allowed, there is also a requirement for the Court to be directly satisfied that the proposal development is in the public interest because it is consistent with the objectives of the contravened development standard and, in this case, the applicable R3 Medium Density Residential zone. I am so satisfied. In regard to the objectives of the contravened development standard, my reasoning aligns with that of the WR (see [25]). I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the R3 Medium Density Residential zone:

The proposal would provide for the housing needs of the community, directly consistent with the first zone objective.
The proposal would add to the housing types within this medium density setting, adding to the variety available, directly consistent with the second zone objective. The third zone objective is not relevant.
The design and siting of the proposal responds to its context, as outlined above when considering the proposal's consistency with the objectives of the height development standard. This makes the proposal consistent with the fourth zone objective of encouraging the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.
The stepped building form to the east, its setbacks and proposed landscaping, provide for a suitable visual transition between high density residential areas and lower density residential areas, consistent with the fifth zone objective.
The proposal is also consistent with the sixth zone objective of ensuring that a high level of residential amenity is achieved and maintained due to its treatment of neighbour interfaces and through the standard of design employed within the development for future occupants.

I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of NSLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention. I find nothing of significance arises in regard to those matters.
The states of satisfaction required by cl 4.6 of NSLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

Conclusion

Based on the material outlined above, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I note that I have not been required to give direct consideration to the overall merits of the application in coming to this position.
In coming to this position, certain amendments were made to the application originally filed. In that regard, the Court notes the following advice from the parties:

The Applicant has amended the application with the consent of the Respondent Council.
The Applicant has uploaded the amended application onto the NSW planning portal on 8 November 2021, comprising all the documents and plans set out in Annexure B hereto.
The Applicant has filed the amended application with the Court on 22 November 2021.

Orders

The Orders of the Court are: 1. The Applicant is to pay the respondents costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $1.00. 2. The appeal is upheld. 3. The request pursuant to clause 4.6 of the North Sydney Local Environmental Plan to vary the development standard for Height of Buildings contained in clause 4.3 thereof, as prepared by Andrew Darroch, Planner, dated October 2021 is upheld. 4. Development consent is granted to Development Application No. 337/20, as amended, for the demolition of the existing residential flat building and construction of a new residential flat building with basement parking at 20-24 Bray Street, North Sydney, with associated earthworks and landscaping, and alterations and additions to the single dwelling at 35 Kurraba Road Neutral Bay, NSW 2089, subject to the conditions set out in Annexure 'A' to this agreement.

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: 15 February 2022

(2007) 156 LGERA 446

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