COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Sydney Eastern City Planning Panel exercising the power of the Respondent (Council) of Development Application DA2020/80/1 (development application) for the demolition of existing townhouses and tree removal and construction of a five (5) storey residential flat building containing thirty-three (33) units including ten (10) infill affordable rental units and two (2) levels of basement parking at SP 32811 known as 2 Eastbourne Road, Homebush West (Site).
The development includes 10 units which are to be affordable rental housing under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP).
The matter had been fixed for hearing on 8 September 2021 before me. The parties however made an application to the Court for an order pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act) that the matter proceed to conciliation. The order for conciliation was made and the hearing was adjourned. I presided over the conciliation conference between the parties.
At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to a proposed amended development application. An agreement pursuant to s 34 of the Court Act was filed.
Pursuant to cl 55 of Environmental Planning and Assessment Regulation 2000 (EPA Regulation) an amendment to a development application only occurs upon the lodgement of the amended development application on the NSW Planning Portal. The amended development application was lodged on the NSW Planning Portal on 26 October 2021. The amended development application was filed with the Court on 22 November 2021
Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.
The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. The parties have provided the Court with an Agreed Statement - Jurisdictional Matters wherein they agree that the Court has power to grant development consent.
The Site is zoned R3 Medium Density Residential under the Strathfield Local Environmental Plan 2012 (SLEP 2012). The development of residential flat buildings is permitted with consent in accordance with the Land Use Table in Part 2 of the SLEP 2012 and, as such, the proposed development is permissible with consent
The height restriction for the proposed development is 14m pursuant to cl 4.3 of SLEP 2012. The development proposes a maximum building height of 16.135m (RL 38.6) to the lift overrun. This represents a maximum exceedance of 2.135m and a variation of 15.25%. Further, there are two other areas where the building will breach the 14m control:
1. Upper proportion/parapet of Level 4 - RL 37.6 (max 1.302, 9.3%);
2. Roof top shade - RL 36.9 (max 0.508m, 3.62%).
Pursuant to cl 4.6 of SLEP 2012 development consent may be granted for development even though the development would contravene the height control.
Without reciting the authorities which are now well known, in order to grant development consent, I must be satisfied that:
The cl 4.6 objection adequately addresses that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard;
As a matter of fact, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard; and
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.
While subcl 4.6(4)(b) of SLEP 2012 requires concurrence of the planning secretary, such power can be exercised by the Court pursuant to s 39 of the Court Act. Further, it is clear that there are no matters of significance for State or regional environmental planning and there are no broader matters of public benefit in maintaining the development standards if the other matters in cl 4.6 are satisfied.
It should not be forgotten that a control such as the height control is not an end in itself, but a tool to achieve the objectives of the control (see for example Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 per Preston CJ).
The Applicant relies upon a clause 4.6 variation request, being 'Amended Clause 4.6 Variation Statement: Maximum Building Height - clause 4.3 of Strathfield LEP 2012' by Planning Ingenuity dated 2 July 2021 to justify the departure from the control.
In the clause 4.6 Statement, the author identified that:
1. The design of the development is such that it demonstrates a 4 storey presentation to the street, with recessive upper levels, making the height exceedance less visible;
2. Compliance with cl 4.3 of the SLEP 2012 is unreasonable or unnecessary in the present circumstances because the objectives of cl 4.3 are achieved, notwithstanding the non-compliances (including for the reasons set out below);
3. The character of the existing area is generally characterised by residential flat buildings and dwelling houses. The proposed development provides a 4 storey scale, as envisaged by the relevant controls. The non-compliance is recessed from the street and has reduced visibility and therefore fits comfortably with the urban context;
4. The proposed development is compatible to the land use to the surrounding development that is primarily residential in nature;
5. There are sufficient environmental planning grounds to justify the noncompliance. The development, which offers ten (10) affordable housing units, is compliant with the ARH SEPP and the development is compliance with the floor space ratio available under that SEPP. Given that the ARH SEPP permits additional gross floor area under the ARH SEPP, some form of variation of the built form envelope is to be anticipated;
6. The height encroachment is a product of the provision of affordable housing throughout the development;
7. Although the height of the building is non-compliant, the development is in the public interest as it is consistent with the objectives of the standard and the R3 zone. That is:
1. The development is of a height generally compatible or improves the appearance of the existing area; and
2. The development achieves a diversity of small and large development options.
Having considered the cl 4.6 Statement and the plans of the proposed development I am satisfied that:
The cl 4.6 objection adequately addresses that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard;
As a matter of fact, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard; and
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.
The development application has been appropriately notified, and submissions taken into account, the submissions largely reflecting the Council contentions which have been resolved by the amendments to the development.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the development application.
A Design Verification Statement, and a statement that the development has been designed by an architect, in accordance with clauses 50(1A) and (1AB) of the EPA Regulation have been provided.
Pursuant to cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated.
The proposal does not involve a change of use, being currently used for residential purposes (6-unit multi-dwelling housing). There is no indication that the land is contaminated as the Site has historically be utilised for residential purposes only. Additionally, the Site is not identified as a known landfill site under Part K of the Strathfield Consolidated Development Control Plan 2005. As such, there are no historic uses which would trigger further Site investigations.
I am satisfied that the Site is not contaminated and that the Site is suitable for the purpose for which the proposed development is to be carried out.
Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation the Proposal is a BASIX affected development, containing a BASIX affected building. An updated BASIX certificate for the proposed development has been provided.
In relation to cl 6.1 (acid sulphate soil) of SLEP 2012 concerning acid sulphate soils, the Acid Sulfate Soils Map shows the Site to be land within class 5, but not within 500 m of land adjacent to class 3. Accordingly, development consent is not required for the carrying out of works set out in cl 6.1(2) of the SLEP 2012.
Further, in any event, para 6.2 (p. 20) of "Geotechnical Investigation and Acid Sulfate Soil Assessment for MJ Holdings 1 Pty Limited" (report No. 20/1824 dated 25 Sept 2020 by STS Geotechnics Pty Limited notes:
1. The property is at an elevation of about RL 21 AHD;
2. The proposed construction will not intercept any acid sulfate soils;
3. Based on the observations undertaken during drilling, it appears that any seepage into the basement would be minor and as a consequence, construction will not result in the lowering of any groundwater that may be present in the area.
A letter from Steven Wallace of Sydney Environmental Group dated 26 June 2020, states that the proposed development does not require development consent pursuant to cl 6.1 of the SLEP 2012.
Having considered the material provided to the Court, and for the reasons expressed by the parties, 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 Court Act.
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 Court Act to dispose of the proceedings in accordance with the parties' decision.
The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.
The Court notes that:
1. Strathfield Municipal Council agrees to the Applicant amending the development application to rely on the following amended material:
1. Amended architectural plans by Bechara Chan & Associates dated 12 August 2021 set out in condition DD5001 of Annexure A;
2. Amended landscape plans prepared by Michael Siu Landscape Architects dated 11 August 2021 set out in condition DD5001 of Annexure A;
3. Amended Stormwater Design plans prepared by SGC Consulting Engineers dated 13 August 2021 set out in condition DD5001 of Annexure A;
4. Arborist letter by Landscape Matrix dated 13 August 2021 set out in condition DD5001 of Annexure A;
5. Traffic letter prepared by Varga Traffic Planning dated 13 August 2021 set out in condition DD5001 of Annexure A.
1. The amended development application was uploaded on the Planning Portal on 26 October 2021.
2. The amended development application was filed with the Court on 22 November 2021.
I make the following orders:
1. The applicant is to pay the Council's costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or as assessed.
2. The appeal is upheld.
3. Development consent is granted to Development Application DA2020/80/1 for the demolition of existing townhouses and tree removal and construction of a five (5) storey residential flat building containing thirty-three (33) units including ten (10) infill affordable rental units and two (2) levels of basement parking at SP 32811 known as 2 Eastbourne Road, Homebush West, subject to the conditions contained at Annexure 'A'.
[2]
Acting Commissioner of the Court
Annexure A (418825, pdf)
[3]
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Decision last updated: 24 November 2021