COMMISSIONER: The Applicant in this Class 1 appeal, Statewide Planning Pty Ltd, seeks consent for residential apartment development to the east of Mark Taylor Oval, on Park Avenue, Waitara.
Specifically, Development Application No DA/65/2019 (the development application) seeks consent for the construction of five, 5-storey residential flat buildings, with a mezzanine level comprising 165 units in total, with ground level communal open space, over two levels of basement car parking for 200 vehicles, removal of trees and consolidation of 9 allotments in 1 lot at 22-32 Park Avenue, Waitara (the site).
On 19 May 2021, the Sydney North Planning Panel refused the development application on behalf of Hornsby Shire Council, the Respondent in these proceedings.
The Applicant appeals the refusal of the development application under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
On 9 November 2021, the Applicant amended the development application, with the agreement of Hornsby Shire Council, as the relevant consent authority, which the parties agree had the effect of resolving a number of the contentions.
The proceedings commenced with an onsite view at which the Court, in the company of the parties and experts, was taken to the frontages of residential flat buildings to the north and south of the subject site, along Park Avenue, including No 42-44 Park Avenue, 40-42A Park Avenue, 16-20 Park Avenue, 12-14 Park Avenue, 8-10 Park Avenue and 4-6A Park Avenue.
The Court also heard an oral submission from a resident who identified as an owner of a property adjoining the site, and on behalf of a close relative who is the owner of another property also adjoining the site who was unable to provide a submission.
At the commencement of the hearing, the parties advised the Court that the Applicant was prepared to further amend the development application, and on that basis the parties would likely reach in-principle agreement, subject to the preparation of amended plans for which an adjournment was sought, and which I granted.
On 13 December 2021, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, and a signed agreement prepared in accordance with s 34(10) of the Land and Environment Court Act (LEC Act) was filed with the Court on 13 December 2021.
Accordingly, the matter was re-allocated to me under s 34 of the LEC Act, with the date of 21 December 2021 fixed for the conciliation conference.
Prior to the conciliation conference, the parties were directed to provide additional information necessitating the revision of the signed agreement, and the agreed conditions of consent, that were filed on 20 December 2021. As the parties' satisfied the Court as to the matters contained in the agreement, the conciliation conference was vacated.
The parties ask me to approve their decision as 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, and 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied by the further amended plans and other documents, in order to allow the Court to make the agreed orders at [42].
For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions.
The site is located within the R4 High Density Residential zone in accordance with the Hornsby Local Environmental Plan 2013 (HLEP), in which residential flat buildings are a permitted use, where consistent with the objectives for development in the zone as follows:
• To provide for the housing needs of the community within a high density residential environment.
• To provide a variety of housing types within a high density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
[2]
The height of building development standard is exceeded
On 4 December 2020, the HLEP was amended by Amendment No 11. Of particular relevance to these proceedings is the reduction in height permitted on the site by cl 4.3 from 17.5m, to 16.5m. That said, as the development application was lodged before the commencement of Amendment No 11, the savings provision at cl 1.8A of the HLEP effectively saves the operation of the height standard of 17.5m.
The height of the proposed development exceeds the height of building development standard applicable to the site under cl 4.3 of the HLEP, and the Applicant relies upon a written request prepared by Planning Ingenuity in accordance with cl 4.6 of the HLEP, and filed with the Notice of Motion at [5] (the written request).
The written request describes the exceedance in the following terms:
Building A is shown exceeding the standard by 410mm.
Building B is shown exceeding the standard by 160mm.
Building C is shown exceeding the standard by 955mm.
Building D is shown exceeding the standard by 1235mm.
Building E is shown exceeding the standard by 995mm.
The written request asserts compliance with the development standard on the site is unreasonable or unnecessary in the circumstances of the case, as the objectives of the standard are achieved, notwithstanding the non-compliance.
Clause 4.3 of the HLEP has the following, single objective:
(a) to permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality.
As the terms 'site constraints', 'development potential' and 'infrastructure capacity' are not defined in the HLEP, the written request considers consistency to be achieved for reasons summarised as follows:
1. The built form proposed does not 'nestle' into the site like buildings in the area due to particular site constraints such as flooding and topography. Instead, the building steps down the site with the fall of topography that is 'appropriate'.
2. The site is not the subject of a floor space ratio that would assist in determining the 'development potential' for the site, and reliance on development envelopes contained in the HDCP would have the effect of applying more onerous standards than those contained in the HLEP, while giving cl 4.6 no work to do in respect of varying the relevant controls determining development potential. Strict compliance would result in the removal of bedrooms and bathrooms, but not a lesser number of apartments due the mezzanine apartments at the uppermost level of the proposed development.
3. Likewise, retaining the overall number of apartments through strict compliance would not reduce the impact of the proposed development on the infrastructure capacity in respect of local traffic, essential services, access to local shops, public transport and other local facilities, so the proposed height of the development may be considered 'appropriate'.
4. As the proposed development is compatible with the scale of development in the vicinity, requiring strict compliance would be unreasonable or unnecessary as it would result in an incompatibility.
Next, the written request advances environmental planning grounds it considers sufficient to justify the contravention of the height standard on the following grounds:
1. The variation in height from the standard is 'particularly small', does not have a material impact on the amenity of the environmental values of surrounding properties, the amenity of future building occupants or on the character of the local area. In particular;
1. Detailed hourly shadow diagrams demonstrate no adverse loss of solar access to surrounding properties as the additional overshadowing from the exceedance is insignificant.
2. Any impact on the amenity of surrounding properties results from windows within a complying height limit. As such, the loss of privacy from non-complying openings is insignificant or none at all.
3. No view loss is expected to result from properties in the locality.
1. The exceedance can be attributed, in part, to the requirement for the proposed development to be above the Flood Planning Level (FPL) applicable to the site. If the FPL did not apply to the site, the proposed development could be 450mm lower in height and, as the site's topography falls 3.29m from the rear to the site frontage, it would be possible for the proposed development to comply with the height limit if compliance with the FPL was not required.
2. The exceedance is greatest in built form that is setback between 13.3m-16.6m from the Park Avenue frontage of the site, and between 3m-8.7m behind the primary built form of what is termed the 'base element'. As a result, the top mezzanine elements will be visually recessive when viewed from Park Avenue.
3. The height of the proposed development is entirely compatible with the height, scale and character of surrounding development when the topography of Park Avenue, and existing non-compliant development in the Balmoral Street Waitara Precinct is considered, consistent with the position set out by Preston CJ at [62]-[63] of Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 that, in summary, the desired future character of an area may be shaped not only by relevant development standards, but also by approved development that contravenes the development standard.
4. The proposed development is a five storey development with a mezzanine level that is compatible with similar approved development at No's 4-6a, 8-10, 12-14 and 16-18 Park Avenue.
5. The exceedance results from the redistribution of floor space from side setbacks, where neighbours' and building occupant amenity may be affected, to mezzanine levels with superior separation distance and landscape outcomes.
6. For the reasons set out at [22], the proposed development achieves the objective of the height standard, the zone objectives and certain objects of the EPA Act, as well as giving better effect to the aims of the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65).
I am satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) for the reasons set out above.
I am also satisfied that the proposed development will be in the public interest notwithstanding the contravention of the height standard because the proposed development is consistent with the objectives of the R4 zone, set out at [15]. The development contributes to providing for the housing needs of the community, and the non-complying parts of the development, being the mezzanine portions at the uppermost level, will add to, and diversify, the housing stock within a high density environment.
In considering whether the written request should be upheld, I have considered the matters to which the Secretary would have regard in granting its concurrence at cl 4.6(5) of the HLEP and find no grounds on which concurrence would be withheld.
[3]
The provisions of the HLEP are further considered
The site is located opposite Waitara Park, which is identified as an item of local heritage significance in Sch 5 of the HLEP. That said, the site is not a heritage item, and is not within a heritage conservation area and so the provisions of cl 5.10 of the HLEP are limited to considerations under subcl (5). As the proposed development is consistent with the height and setback evident in Park Avenue, and has a greater proportion of its setback dedicated to landscape treatment, I do not consider it necessary to require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item.
Clause 5.21 of the HLEP requires the consent authority, or the Court on appeal, to be satisfied in respect of flood planning. I am advised that cl 5.21 was inserted in to the HLEP on 14 July 2021, by Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Order 2021), but which is saved by the terms of cl 8(1) of Standard Instrument (Local Environmental Plans) Order 2006 to the effect that amendments made by an amending order such as Order 2021, do not apply to an application that was made, but not determined, before the commencement of the Order 2021. As a consequence, the new cl 5.21 in the LEP does not apply to the development application.
That said, it is commonly held that the southern portion of the site is affected by overland stormwater flows from an adjacent Council stormwater pipe and easement, and is at or below the flood planning level, and therefore within a "flood planning area", giving rise to considerations at [22(2)]. On the basis of the Flood Assessment prepared by GRC Hydro dated October 2021, I am satisfied that the proposed development is compatible with the flood function and behaviour on the land; will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties; will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood; incorporates appropriate measures to manage risk to life in the event of a flood, and will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
I have also considered the Geotechnical Report prepared by D Katauskas dated May 2016, the Soil and Water Management Plan prepared by Linx Constructions dated December 2019, the Stormwater Concept Design prepared by SGC listed in Condition 1 of the agreed conditions of consent, and the terms of Conditions 8, 16 and 17, which I find address the matters for consideration in respect of earthworks at cl 6.2(3) of the HLEP.
[4]
State Environmental Planning Policy No 65 - Design quality of Residential apartment development (SEPP 65)
As the proposal is for residential apartment development, the provisions of SEPP 65 apply.
Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following:
(a) the advice (if any) obtained from the design review panel, and
(b) the design quality of the development when evaluated in accordance with the design quality principles, and
(c) the Apartment Design Guide.
The Respondent has, for whatever reason, not constituted a design review panel as defined by Pt 3 of SEPP 65 whose advice the Court can be assisted by.
However, where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.
The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr Aleksandar Jelicic (Reg No.7167) is in a complying form and adequately demonstrates that the development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide.
On the basis of the design statement prepared by Mr Jelicic, I am also of the opinion that the proposal is consistent with those standards at cl 30 that cannot be used as grounds to refuse development consent, and I consider that adequate regard has been had to the design quality principles and to the objectives specified in the Apartment Design Guide, in accordance with cl 30(2).
[5]
State Environmental Planning Policy No 55 - Remediation of Land
I note here that existing structures present on the site are the subject of an earlier consent to demolish and the agreed conditions of consent at Annexure A require the carrying out of demolition in a manner that is consistent with that prior consent. On the basis of Conditions 38 and 39, I am satisfied that the site can be made suitable for the proposed development pursuant to cl 7 of the State Environmental Planning Policy No 55 - Remediation of Land.
[6]
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 818809M_07), prepared by EPS dated 10 December 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.
[7]
Conclusion
The Sydney North Planning Panel, as the relevant consent authority, agreed to the further amendment of the application in accordance in accordance with cl 55(1) of the EPA Regulation.
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.
[8]
Orders
The Court notes:
1. That Sydney North Planning Panel, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA/65/2019 to rely upon the documents listed in below:
BASIX Certificate no. 818809M_07 dated 10 December 2021 prepared by EPS;
Amended landscape plans prepared by Site Design Studios dated December 2021;
Amended architectural plans prepared by Aleksander Projects.
Clause 4.6 request for height prepared by Planning Ingenuity dated 7 December 2021;
SEPP 65 Design Verification Statement prepared by Aleksander Projects dated December 2021.
1. That Hornsby Shire Council has uploaded the documents listed in order (1) on the NSW planning portal on 13 December 2021.
2. That the applicant has subsequently filed the documents listed in order (1) with the Court on 13 December 2021.
The Court orders that:
1. The appeal is upheld.
2. Development consent is granted to development application DA/65/2019 for the demolition of existing structures and construction of 5 x 5 storey residential flat buildings with mezzanine level containing 165 units with ground level communal open space, over two levels of basement car parking for 200 vehicles, removal of trees and consolidation of 9 lots into 1 at 22 - 32 Park Avenue, Waitara, subject to conditions contained in Annexure 'A'.
[9]
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: 30 December 2021