Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2021/228144
Publication restriction: No
[2]
Judgment
COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the City of Canada Bay Council (Council) of Development Application DA2020/0349 (the DA). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.
The DA relates to a 1,674m2 parcel of land comprising two lots and identified as Lot 1 in DP 579151 and Lot 2 in DP 11056 at 76B St Georges Crescent, Drummoyne (the Site). The Site is a battle-axe block of land with an approximately 3.0m wide by 36.5m long driveway (battle-axe handle) connecting the waterfront site to St Georges Crescent. The Site's 15.07m wide eastern waterfront boundary is to the Parramatta River. It is currently occupied by a two storey dwelling house, in-ground swimming pool, tennis court, boat shed and boat ramp.
The DA, as submitted to the Council on 9 December 2020, sought consent for demolition / removal of the existing dwelling, swimming pool and tennis court, and the construction of a residential flat building containing three units, refurbishment of the boathouse as a poolside cabana, landscaping and associated facilities including two new swimming pools, with the boat ramp to be retained. Strata subdivision was also proposed.
The DA, as illustrated in the architectural plans prepared by PBD Architects dated 25 November 2020 (Issue B plans), was publicly notified from 11 December 2020 to 22 January 2021, resulting in the receipt of 27 submissions, including 2 petitions.
On 3 June 2021, the Applicant provided additional information and amended the DA, as illustrated in the architectural plans prepared by PBD Architects dated 3 June 2021 (Issue C plans). The DA as amended, including the Issue C plans, was renotified between 10 June 2021 and 1 July 2021, resulting in the receipt of 15 submissions.
On 16 June 2021, the amended DA was considered by the Council's Design Review Panel (DRP) which had also considered the initial proposal (Issue B plans). The DRP noted that substantial amendments had been made to the initial proposal and the DRP's previous recommendations were largely addressed in the Issue C plans.
On 28 July 2021, the DA as amended was considered by the Canada Bay Local Planning Panel (Planning Panel). The Planning Panel deferred consideration of the DA for up to 30 days subject to an amended design satisfactorily addressing a number of issues, as specified in par 5.8 of the Council's Statement of Facts and Contentions, dated 28 September 2021 (SOFC).
On 4 August 2021, following the Applicant's confirmation that it would not be making further amendments to the DA, the Planning Panel refused the DA for the reasons set out in par 5.12 of the SOFC.
On 10 August 2021, the Applicant filed this Class 1 Appeal with the Court and on 28 September 2021 the Council filed its SOFC. The Court arranged a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), that was held before me on 25 November 2021 and 21 December 2021.
Following the s 34 conference, the Applicant made further amendments to the DA, including to the architectural and landscape plans, in order to address matters raised in the SOFC, the public submissions and arising from discussions in the s 34 conference.
On 19 January 2022, the parties advised the Court that they had signed an agreement pursuant to s 34(3) of the LEC Act and filed a copy of that agreement with the Court. On 19 January the parties also filed a copy of the various documents that comprised the final amended DA, as uploaded to the NSW planning portal on 18 January 2022, and referred to in the s 34 agreement.
The main changes between the amended DA plans (the Issue C plans) that were refused by the Planning Panel, and the final amended plans the subject of the s 34 agreement, can be summarised as:
1. On the ground floor the building line on the waterfront side of the building has been setback by an additional (approximately) 3.9m to align with the Foreshore Building Line and the floor layout of the 3 bedroom unit (labelled Unit 2.01 on drawing DA102, Issue M dated 17.12.21) has been revised and reduced in area from (approximately) 284m2 to (approximately) 247m2.
2. On Level 1, the building line on the waterfront side of the building has been setback by an additional (approximately) 2.0m to align with the Foreshore Building Line and the floor layout of the 3 bedroom unit (labelled Unit 1.01 on drawing DA103, Issue J dated 21.12.21) has been revised and reduced in area from (approximately) 290m2 to (approximately) 270m2. The width of the eastern balcony has been reduced from approximately 4.0m to 3.2m. The layout of Level 1 (including balcony) is now the same as the layout of the unit on Level 2 above.
3. On Level 2, the building line on the waterfront side of the building and the floor layouts remain the same, although the width of the eastern balcony has been reduced from approximately 4.0m to 3.2m.
4. On the side boundaries, the height of the masonry flood barrier walls has been reduced in places and replaced by a glass balustrade top to the wall. The design of the flood barrier on the eastern and northern sides of the private open space to the ground floor unit has been adjusted.
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 DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional impediments to the Court exercising its function under s 34(3) of the LEC Act.
[3]
Satisfaction of jurisdiction
In relation to the Canada Bay Local Environmental Plan 2013 (CBLEP) the relevant provisions are:
1. The development is for the purposes of "residential accommodation" which is a type of "Residential flat building", which is permissible with consent in the R3 Medium Density Zone (R3 Zone), and the development is consistent with the objectives of the R3 Zone. Subdivision of the land, including amalgamation of the two allotments and strata subdivision, is permissible with consent pursuant to cl 2.6 of the CBLEP and demolition is permissible with consent pursuant to cl 2.7.
2. The maximum height of the residential building does not comply with the applicable 8.5m height of buildings development standard at cl 4.3 of the CBLEP, necessitating a written request to vary this development standard pursuant to cl 4.6 of the CBLEP. This is addressed in pars [15] to [17] of this judgment.
3. The Site is located within Area 1 on the CBLEP's Floor Space Ratio (FSR) Map. Pursuant to cl 4.4(2A), the maximum FSR does not apply to a residential flat building in this area.
4. Clause 5.10 does not apply as the Site does not contain a heritage item and is not located within the vicinity of any heritage items. (Emphasis added.)
5. Clause 5.21 does not apply as the Site is not located within a "flood planning area". (Emphasis added.)
6. Pursuant to cl 6.1, the Site is identified as Class 2 and Class 5 on the Acid Sulfate Soils Map. A Preliminary Site Investigation (PSI) prepared by EI Australia dated 19 October 2020, concluded that there was low potential for actual or potential acid sulfate soils within the proposed development footprint (pp v and 20). As such, no acid sulfate soils management plan is necessary. Pursuant to cl 6.1(4)(b), Council has provided written notice (dated 21 December 2021) confirming this management plan is not required.
7. Clause 6.2(3) of the CBLEP sets out matters for consideration prior to the grant of development consent, in respect of earthworks. The Applicant included a Geotechnical Investigation Report prepared by EI Australia dated 20 October 2020 (Geotech Report) within its original application to Council. On the basis of the Geotech Report, the Court is satisfied that the matters specified in cl 6.2(3) have been considered and the Court notes the Council deems the proposal satisfactory in this regard.
8. The portion of the Site bordering the Parramatta River is identified as 'Environmentally Sensitive Land' and cl 6.3(4) therefore applies. Clause 6.3(3) provides matters which must be considered prior to granting development consent, and cl 6.3(4) provides that:
(4) Development consent must not be granted unless the consent authority is satisfied that -
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
1. The Applicant has provided Stormwater Management Plans dated 19 November 2021 and an Upstream Catchment Analysis Report. On the basis of these documents, the Court is satisfied there are no stormwater impacts that would affect native fauna and flora or their ecological processes. Pages 41 - 42 of the Council's Assessment Report for the DA set out the Council's consideration of this clause, and the Court is satisfied the relevant matters in cl 6.3 have been addressed and are considered acceptable.
2. The Site is located partially within the "foreshore area" pursuant to the Foreshore Building Line (FBL) Map, and cl 6.4 of the CBLEP therefore applies. It prohibits development within the foreshore area, except for specified purposes. This is addressed in the Statement of Environmental Effects Addendum prepared by Plan Urban Services Pty Ltd, dated 15 December 2021 (SEE Addendum). The Court is satisfied, for the reasons set out at pp 29-30 of the SEE Addendum, that the development within the land identified as foreshore area is development for the purposes of cl 6.4(3)(a), namely the alteration of the existing boatshed building; cl 6.4(2)(b), namely "the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so" or cl 6.4(2)(c) for the purposes of sea retaining walls, slipways, fences, recreation facilities (outdoor) and associated facilities.
3. The Court is also satisfied that the development contributes to achieving the objectives of the R3 Zone and is satisfactory with respect to the other matters referred to in cl 6.4(3), for the reasons set out at pp 31-33 of the SEE Addendum.
The development does not comply with the maximum height of buildings development standard at cl 4.3 of the CBLEP. Clause 4.6 of CBLEP allows the Court, standing in the shoes of the consent authority, to grant consent to the DA notwithstanding the contravention of cl 4.3, subject to it being satisfied that the relevant preconditions in cl 4.6 have been met.
A revised written request to vary the cl 4.3 height standard has been prepared by Plan Urban Services Pty Ltd, dated 10 December 2021 ("Clause 4.6 Request"). According to the Clause 4.6 Request, at its' highest point at the eastern (waterfront) end, the building breaches the 8.5m height limit by 670mm. I have reviewed the Clause 4.6 Request and am satisfied, for the reasons set out in that document, that:
1. The Clause 4.6 Request has adequately addressed the matters required to be demonstrated under cl 4.6(3) of the CBLEP, and
2. That independently, I consider the 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, as required pursuant to cl 4.6(4) of the CBLEP.
The Court can grant consent without the concurrence of the Planning Secretary pursuant to s 8.14(3) of the EPA Act, but should take into account the matters in cl 4.6(5) of the CBLEP. In this case, the development is a local development with a minor non-compliance and adequately justified breach of the building height. In the circumstances of this case, the contravention of cl 4.3 of the CBLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard.
The State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), in particular subcll 7(1) and (2), apply to the land and require consideration of any contamination and associated remediation. The Applicant's PSI has addressed this clause. It concluded that the Site is suitable for the purposes of the development proposed, subject to the implementation of recommendations listed at page vi of the PSI. The Applicant agrees to implement those recommendations and they have been incorporated into the conditions of consent.
In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a BASIX Certificate Number 1159200M_03 dated 18 January 2022 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent.
The State Environmental Planning Policy - No 65 Design Quality of Residential Apartment Development does not apply to the DA due to the operation of cl 4(c) as only 3 dwellings are to be constructed (emphasis added).
The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the Site. The waterway in front of the Site is within the Zone W7 - Scenic Waters: Casual Use (Zone W7) as shown on the Zoning Map to the SREP. Pursuant to cl 16(3), land within Zone W7 comprises the waters between mean high water mark (MHWM) and a line running parallel to and 30m seaward of the MHWM. As the proposal involves development on the land only (not in the waters seaward of the MHWM), the Zone W7 zoning provisions do not apply.
Clause 20 of the SREP requires matters identified in Pt 3, Div 2 of the SREP to be taken into consideration before development consent is granted. The relevant cl 21 (biodiversity, ecology and environment protection), cl 25 (foreshores and waterways scenic quality) and cl 26 (maintenance, protection and enhancement of views) in Pt 3, Div 2 have been addressed in both the initial Statement of Environmental Effects lodged with the DA (SEE), and in the SEE Addendum and have been taken into consideration. In particular, I note that:
1. The proposed renovation of the existing boatshed will not disturb the existing ecology as works will be completed outside the Zone W7.
2. The Stormwater Management Plans demonstrate the proposed stormwater catching and release method, which includes cleansing devices, will ensure any released water is clean.
3. No public access is currently available through the Site or the properties on either side.
4. Renovations to the boatshed will improve its appearance from the waterways and the proposed design of the development will contribute positively to the visual quality of the foreshore.
5. The Private View Sharing Assessment by Richard Lamb and Associates, submitted as part of the DA documentation, concluded the substantive views remain, or would have been impacted regardless, by a compliant building envelope.
6. Matters specified in cll 27A and 27B are not relevant to the proposal as no floating boat platform or mooring pens are proposed.
The parties advise that on 10 December 2021, the DA's SEE was forwarded to the Foreshores and Waterways Planning and Development Advisory Committee (Advisory Committee) pursuant to cl 29 of the SREP that was in force at the time. As more than 30 days has passed since the date of this referral, the Court is not required to take into account the view of the Advisory Committee (refer cl 29(1)(b) of the SREP).
Part of the Site is located within a wetlands protection area pursuant to Pt 6 of the SREP. Clause 63 of the SREP requires the matters listed in cl 63(2) to be taken into consideration prior to the grant of development consent. The Court is satisfied that these factors have been considered, and notes in particular:
1. The Stormwater Management Plans include specifications for the rainwater tanks, sediment fences and water pumps which will be used to ensure the development has a neutral or beneficial effect on the quality of water entering the waterways, and ensure soil erosion and siltation are minimised.
2. The proposed renovation of the existing boatshed will not disturb the existing ecology.
3. The proposal represents a balance between environmental and human requirements with water management planning consistent with the principles of the NSW Wetlands Management Policy 2010.
The State Environmental Planning Policy (Coastal Management) 2018 (SEPP CM) applies to the Site. The Site is mapped as being within the Coastal Environment Area and Coastal Use Area pursuant to the SEPP CM. The Site is consequently in the coastal zone pursuant to s 5 of the Coastal Management Act 2016 (Coastal Management Act).
The development controls at cll 13 and 14 of the SEPP CM do not apply, as the Site is within the Foreshores and Waterways Area pursuant to the SREP (see cll13(3) and 14(2) of the SEPP CM).
Clauses 15 and 16 of the SEPP CM apply, and require that development consent must not be granted on land within the coastal zone unless the consent authority:
1. is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land (cl 15), and
2. has taken into consideration the relevant provisions of any certified coastal management program (CMP) that applies to the land (cl 16).
The Applicant has provided letters of coastal engineering advice prepared by Horton Coastal Engineering dated 31 March 2021, 10 May 2021 and 19 November 2021 (Coastal Engineering Advice letters). On the basis of these letters, the Court is satisfied that the DA is not likely to cause an increased risk of coastal hazards on the Site or other land.
The Parramatta River Estuary Coastal Zone Management Plan (gazetted on 1 July 2016) (CZMP) applies to the local government area of Canada Bay, and is considered a certified coastal management program, pursuant to cl 4 of the SEPP CM and cl 4, Sch 3 of the Coastal Management Act. The Council has considered the CZMP, to the extent it is relevant. In that regard:
1. The CZMP applies to the Parramatta River estuary, being a broad area that partly includes the City of Canada Bay Council's local government area.
2. Page 20 of the CZMP shows that Drummoyne is within the CZMP's study area. Figure 2.3 of the CZMP shows the foreshore area of the Site indicated as a "recreational area".
3. The foreshore area of the Site is not the subject of the Action Plan shown on p 96 of the CZMP (where a number of actions are listed for the City of Canada Bay LGA).
4. The Coastal Hazard Assessment (CHA) that forms part of the CZMP identifies that residential properties in Drummoyne were, in 2013, at risk of inundation in the 100-years ARI event. The CZMP identifies in the CHA at p 20 that:
"In the 100-years ARI event, inundation extents are larger, with some areas of industrial/commercial land and small areas of residential land being inundated. Key areas that are currently at risk of inundation during the 100-years ARI include Haberfield (roads) and Drummoyne (residential properties). Whilst the main developed portion of these residential and commercial/industrial lands are unlikely to be inundated, there may be localised areas of impact, particularly in relation to ancillary structures such as garden sheds or storage areas."
1. The Applicant has provided the Coastal Engineering Advice letters that address the 100-year ARI in the context of the Site, as adopted in the more recent Exile Bay Catchment Flood Study completed for Council in December 2020.
[4]
Disposal of proceedings in accordance with the parties' decision
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' agreement.
In determining these proceedings, the Court has all the functions and discretions of the consent authority in respect of the DA: see s 8.14(1) of the EPA Act and s 39(2) of the LEC Act. One of those functions is the ability to agree to the amendment or variation of a DA by an applicant under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). See Preston CJ in Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [151].
As requested by the parties, the Court exercising the functions of the Council pursuant to s 39(2) of the EPA Act, agrees pursuant to cl 55(1) of the EPA Reg to the Applicant amending development application DA2020/0349 as per the following documentation (Amended Application):
[5]
Schedule 1
Plan Name Drawing number Revision Date Prepared by
Architectural plans
Site Plan 003 J 17 December 2021 PBD Architects
Basement 101 H 9 December 2021 PBD Architects
Ground Floor Plan Sheet 1 102 M 17 December 2021 PBD Architects
Ground Floor Plan Sheet 2 102a K 17 December 2021 PBD Architects
Level 1 103 J 21 December 2021 PBD Architects
Level 2 104 J 21 December 2021 PBD Architects
Roof Plan 105 G 9 December 2021 PBD Architects
North and South Elevations 201 I 17 December 2021 PBD Architects
East and West Elevations 202 I 17 December 2021 PBD Architects
Section A and B 300 H 9 December 2021 PBD Architects
Section C 301 G 17 December 2021 PBD Architects
Height Blanket 1 530 D 24 November 2021 PBD Architects
Sun Eye View 600 D 24 November 2021 PBD Architects
Updated Shadow Diagram 701 D 24 November 2021 PBD Architects
Exceedance of Height Limit 301 P2 4 May 2021 PBD Architects
Stormwater plans
Basement C100 C 6 December 2021 Xavier Knight
Ground 1 C101 C 6 December 2021 Xavier Knight
Ground 2 C102 C 6 December 2021 Xavier Knight
Site Plan C103 C 6 December 2021 Xavier Knight
Drainage Details C200 C 6 December 2021 Xavier Knight
Sediment and Erosion Control Plan C300 C 6 December 2021 Xavier Knight
Traffic plans
Vehicle Ground Clearance Analysis 20076CAD004E-001 E 29 November 2021 MLA Transport Planning
Reports
BASIX Certificate no 1159200M_03 prepared by Brian Teplicanec Consultancy dated 18 January 2022.
Updated NatHers plans dated 18 January 2022.
Addendum to Statement of Environmental Effects prepared by Plan Urban dated 15 December 2021
Amended Clause 4.6 Variation Statement re Height of Buildings prepared by Plan Urban dated 10 December 2021
Updated Structural Design Certificate prepared by Xavier Knight dated 17 December 2021
Upstream Catchment Analysis Report prepared by Xavier Knight dated 7 December 2021
[6]
Stormwater Engineering Statement prepared by Xavier Knight dated 19 November 2021
Supporting Coastal Engineering Letter prepared by Horton Coastal Engineering dated 19 November 2021
Hercules Car Lifts Operation Manual, Handbook and Specifications prepared by Hercules Carparking Systems dated July 2021
[7]
The Court notes:
1. That the Amended Application was lodged on the NSW planning portal on 18 January 2022.
2. That the Applicant subsequently filed the Amended Application with the Court on 19 January 2022.
The Court orders that:
1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
2. The Applicant's amended written request under clause 4.6 of the Canada Bay Local Environmental Plan 2013 (LEP), prepared by Plan Urban Services Pty Limited dated 10 December 2021 seeking a variation of the development standard for height under clause 4.3 of the LEP, is upheld.
3. The appeal is upheld.
4. Development consent is granted to development application DA2020/0349 for the demolition of an existing dwelling and construction of a residential flat building containing 3 units and a strata subdivision at 76B St George Crescent, Drummoyne subject to the conditions of consent in Annexure A.
5. The Respondent is directed to register the Development Consent on the NSW Planning Portal in accordance with s. 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders.
6. The Respondent is to publish a notice of the development consent granted in relation to DA2020/0349 on its website in accordance with cl 124 of the EPA Regulation within 14 days from the date of this order.
[8]
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
Parties
Applicant/Plaintiff:
Project Xander Land Pty Ltd ATF Project Xander Land Trust