Ziv and Co Pty Ltd v Shoalhaven City Council [2025] NSWLEC 1171

Texts Cited: Apartment Design Guide, 2015
Community Consultation Policy for Development Applications

Category: Principal judgment

Parties: Ziv and Co Pty Ltd ACN (Applicant)
Shoalhaven City Council (Respondent)

Representation: Counsel:
I Hemmings SC (Applicant)
A Stafford (Respondent)
Solicitors:
Foundation Law Group (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2024/16705

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA 23/1784 (DA) seeking consent for the demolition of existing buildings and construction of a three-storey residential flat building consisting of 35 apartments, and two basement parking levels (Proposed Development) at 56-60 Hawke Street, Huskisson, also known as Lots 1, 2 and 3 in Section 8 of Deposited Plan 758530 (the Site).

2. The DA was notified for a period of 28 days in accordance with the Respondent’s ‘Community Consultation Policy for Development Applications (Notification Policy), by way of letters dated 13 December 2023 and 10 January 2024. Council received 15 submissions from the public during the public notification period a copy of which are included in the Respondent’s Bundle of Documents filed 6 February 2025 and the List of Objectors filed 11 February 2025. The DA was renotified on 5 February 2025 following a Notice of Motion to amend the DA, for a period of 7 days and no further submissions were received. As the hearing commenced on site on 17 February 2025, the Court heard from objectors who made oral submissions regarding the main concern of adverse amenity impacts by overshadowing.

3. This Appeal was listed for hearing for 4 days commencing 17 February 2025 on site. As such, the parties rely on the following Joint Expert Reports:

4. Traffic filed 20 December 2024 prepared by Robert Varga for the Applicant and Paul Corbett for the Respondent (JER Traffic). The JER Traffic resolved Contention 4 of the Council’s Statement of Facts and Contentions (SOFAC) filed 23 February 2024 by adopting Option 2 being vehicular access directly onto Nowra Street with the existing laneway being retained in its current form and not used for vehicle or pedestrian access for the Proposed Development.

5. Arboricultural filed 22 January 2025 prepared by Consulting Arborists William Dunlop for the Respondent and Ross Jackson for the Applicant.

6. Planning and Urban Design filed 28 January 2025 and a Supplementary Planning and Urban Design filed 14 February 2025 (Supplementary JER Town Planning and Urban Design) prepared by Jeremy Swan, Town Planning Consultant and Steve Kennedy, Urban Design Consultant for the Respondent and Lee Carmichael, Town Planning Consultant and Rohan Dickson, Urban Design Consultant for the Applicant.

7. Engineering filed 3 February 2025 prepared by Scott Haylett for the Respondent and Dr Daneil Martens for the Applicant (JER Engineering).

8. Following production of the Supplementary JER Town Planning and Urban Design and further discussions between those experts following the first day of the hearing, Council agreed to a further amendment of the plans pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021.

9. These subsequent amendments, which primarily involved deletion of the upper storey of Building B, introduction of an additional 1.8m setback for Building B to the eastern boundary with the laneway, and introduction of a bin storage room on the ground floor of Building A, as well of a number of other corrections to the application documents, which resolved the outstanding merit issues raised in the SOFAC. In part the plans the subject of the agreement reached between the parties, are a response to matters raised by the objectors. The Respondent provided to the court a copy of further written submissions dated 19 February 2025 which have been duly considered by the parties in reaching their agreement.

10. After the commencement of the hearing on 17 February 2025, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was been held on 19 February 2025. I presided over the conciliation conference and adjourned the hearing which was ultimately vacated.

11. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

12. 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. 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.

13. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

14. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Shoalhaven Local Environment Plan 2014 (the SLEP) to vary a development standard as well as other provisions of the SLEP and state environmental planning policies specified and addressed below. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

15. I reproduce below at Fig 1 an aerial photograph of the Site from the SOFAC. The Site can be described as follows:

16. consisting of three separate allotments which are legally described as Lots 1, 2 and 3 in Section 8 of Deposited Plan 758530, with a street address of 56-60 Hawke Street, Huskisson NSW 2540.

17. is zoned as R3 – Medium Density Residential under the Shoalhaven Local Environment Plan 2014 (the SLEP). Residential flat buildings are permissible with consent in the R3 Zone.

18. is regular in shape with a total land area of 3,035.1m² complying with the minimum lot size development standard of 900 m2 pursuant to cl 4.1 of the SLEP.

19. has a northern frontage of 51m to Nowra Street and a western frontage of 60m to Hawke Street.

20. is currently occupied by tourist and visitor accommodation and two single detached dwelling houses.

21. is identified in the SLEP as Class 5 Acid Sulfate Soils, is within 500 metres of adjacent Class 2 land and a basement is proposed that is below 5 metres Australian Height Datum.

(a) The Respondent’s SOFAC accurately contends that in accordance with cl 7.1(3) of the SLEP, development consent cannot be granted to the Proposed Development unless an acid sulfate soils management plan has been prepared in accordance with the Acid Sulfate Soils Manual or one of the circumstances in cl 7.1(4) or (6) is present. (b) The JER Engineering refers to and relies upon an Acid Sulfate Soils Management Plan (ASSMP) dated 23 January 2025. The applicant sought leave to amend the DA to include the ASSMP as part of the DA, which was granted on 5 February 2025. (c) Having regard to the ASSMP, the parties’ engineering experts agree that development consent can be granted under this clause as an ASSMP has been prepared and provided to the Court as required by cl 7.1 of the SLEP. (d) Accordingly, the jurisdictional prerequisite of cl 7.1 of the SLEP, subject to a condition that the ASSMP be complied with during the basement excavation phase of the development, is satisfied. This is required by Conditions 1, 43 and 44 of the agreed conditions of consent.

12. The Applicant is the registered proprietor of the Site and has given owner’s consent for the purposes of the DA: Class 1 Application filed 15 January 2024.

13. The Site is subject to a maximum building height of 11m in accordance with cl 4.3(2A) of the SLEP. The Applicant relies on a written request pursuant to cl 4.6 of the SLEP prepared by Jervis Bay Town Planning dated 18 February 2025 which seek to justify the contravention of the Height of Buildings (HOB) development standard.

14. The DA, and more particularly, the Written Request, is to be assessed under the terms of cl 4.6 of the SLEP in force before 1 November 2023. This is because the DA was lodged on 29 September 2023 and was not determined by 1 November 2023 which is when amendments were made to clause 4.6 of the SLEP through the Standard Instrument (Local Environmental Plans) Order 2006 in cl 8(1).

15. Clause 4.6 in force at the relevant time provided (excluding subss (6) and (8)) as follows:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) 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, and

(b) the concurrence of the Planning Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Planning Secretary must consider—

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

…

(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

16. The parties agree that there is material in the Written Request that addresses and demonstrates the matters of which the consent authority is required to be satisfied under subclauses 4.6(3) and (4)(a) of the SLEP. It is noted by the Respondent that the Written Request also includes other material that does not contribute to demonstration of those matters and the Respondent Council does not accept all of the arguments that have been made in the Written Request.

17. The Respondent does agree, and the Court accepts, that the topography shown on Site along the North elevation of Building A comprises environmental planning grounds for allowing the limited height exceedance in Building A because a fourth storey almost fits under the height envelope to the western end of Building A and this whole storey would be lost if the control was strictly applied. The HOB exceedance is now minor in Building B and is ameliorated by the new setback to the lane. The Respondent agrees that the objectives of the HOB development standard are achieved notwithstanding these exceedances.

18. I reproduce the extract of the North and South elevations noting that the North Elevation depicts Building A showing a significant set back of the top storey improving the presentation to the adjoining neighbours of Duncan Street and reducing significantly, in fact almost eliminating any adverse overshadowing impact. The South Elevation depicts Building B with Building A behind.

Fig 1: extract from Elevation 01 Drawing No: A-201 Issue X prepared by adm Architects dated 18 February 2025

19. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the SLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP and that the Proposed Development would 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.

20. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to all of NSW and in this appeal Chs 2 (Coastal Management) and 4 (Remediation of Land) are relevant.

21. The parties agree that the subject site is not mapped as being within the “coastal vulnerability area” under the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and that there is an error in the SOFAC and the Respondent’s Bundle. However, the site is mapped as being within the “coastal use area” under the Resilience and Hazards SEPP which attracts the jurisdictional prerequisite contained in s 2.11 in Division 4 of Chapter 2 – Coastal Management, of the Resilience and Hazards SEPP.

22. So that the Court may consider and be satisfied of those matters identified in clause 2.11 of the Resilience and Hazards SEPP, the parties have prepared a supplementary jurisdictional submission to explain specifically how the jurisdictional prerequisite of s 2.11(1)(b) of the Resilience and Hazards SEPP has been satisfied, namely that:

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact

23. With respect to s 2.11(1)(a)(i)-(v) of the Resilience and Hazards SEPP, which requires the consideration of a number of matters, the parties agree as follows:

24. The Site is not located in an area that would cause it to impede access to a foreshore, beach, headland or rock platform. It is located some 400m away from the coastline. The development and ongoing use will not otherwise interfere with the flow of traffic on Nowra Street, which would be used by the public to access the foreshore, consistent with the evidence of the parties’ traffic experts in JER Traffic and the Operational Waste Management Plan, prepared by Jervis Bay Town Planning, Revision 2, dated 18 February 2025.

25. The development will not create overshadowing, wind funnelling or a reduction of views from public spaces to foreshores. This is due to the distance between the development site and the coastline.

(a) Consistent with the amended Shadow Diagrams, being plans A.401 – A.402e (inclusive), prepared by ADM Architects, dated 18 February 2025, the Proposed Development will not create any overshadowing of public places and otherwise as illustrated in the Streetscape Elevations and artistic images (Plans A.003 and A.004) there will be no loss of views from public places to the foreshore, given both the distance to the foreshore and the extent of existing built structures. (b) There will be no issue in relation to wind funnelling as presented in the Site Analysis Plan (A.002a), prepared by ADM Architects, dated 18 February 2025.

3. As demonstrated in the Streetscape Elevations, Artistic Imagery and Site Analysis prepared by ADM Architects, dated 18 February 2025 (Plans A.002a, A.003 and A.004), and the physical distance of the site to the coast and coastal headlands, as illustrated on p 4 of the Statement of Environmental Effects (SEE), the visual and scenic qualities associated with the area will not be adversely impacted. The development would not be visible from any area of beach or coastline. The urban settlement pattern of Huskisson is such that taller buildings on sites with greater height of building limits are situated closer to the coastline than the subject land. On this basis, and with the majority of the development sitting at or below the 11m height limit, there is no reasonable prospect of the development impacting on the scenic quality of the area.

4. The parties have undertaken a search of the Aboriginal Heritage Information Management System (AHIMS) database which does not identify any Aboriginal heritage sites or places on the site or in adjacent areas. On this basis, and with the land being within a highly disturbed and developed residential area, the development is unlikely to impact on Aboriginal cultural heritage, practices and places.

5. The parties advise that the relevant heritage map from the SLEP, confirms that the three separate allotments comprising the Site are not listed heritage items or within a heritage conservation area.

6. Accordingly, consistent with the above analysis, in particular the physical separation and distance between the site to the associated foreshore, the selection of materials and finishes, the implementation of the Integrated Water Cycle Report dated 23 January 2025, Hydrogeological Assessment and Groundwater Dewatering Management Plan, dated 23 January 2025 and the Acid Sulfate Soil Management Plan, I am satisfied that the Proposed Development has been appropriately designed, sited and managed to avoid those adverse impacts referred to in s 2.11(a), or otherwise sufficiently minimised pursuant to s 2.11(b)(ii) of the Resilience and Hazards SEPP.

7. Chapter 4 of the SEPP requires the Court to consider whether the land is contaminated as part of the assessment of any development application. Clause 4.6(1)(a)-(c) of the SEPP provides as follows:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

26. The Site is currently used for residential purposes, is located within an established residential area and been the subject of geotechnical investigations which did not identify any anthropogenic fill material on Site. I have referred to the Geotechnical Report prepared by Geofirst Pty Ltd dated 18 September 2023 filed with the Class 1 Application at Tab 22.

27. Accordingly, I am satisfied that there is evidence that the Site is not contaminated pursuant to s 4.6(1)(a) of the Resilience and Hazards SEPP.

28. On 14 December 2023, State Environmental Planning Policy Amendment (Housing) 2023 repealed State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65). However, by virtue of the saving and transitional arrangements set out in clause 8(1) in Schedule 7A of State Environmental Planning Policy (Housing) 2021, SEPP 65 continues to apply to the Development Application because it was lodged but not finally determined before State Environmental Planning Policy Amendment (Housing) 2023 was introduced.

29. Development consent must not be granted if the consent authority is of the opinion that the development does not demonstrate adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria (cl 30(2) of SEPP 65).

30. The Shoalhaven Local Government Area does not have a design review panel. However, a detailed ADG compliance table and design verification statement has been prepared by ADM Architects, dated February 2025, as part of the DA. The compliance table lists each of the relevant design principles for the Proposed Development and provides commentary on how each are satisfied.

31. The parties are satisfied that the development application has given adequate regard to both the design quality principles and the relevant design criteria.

32. As the Site is in a fully serviced residential subdivision, I am satisfied, as required by cl 7.11 of the SLEP that services that are essential for the development are available or that adequate arrangements have been made to make them available when required.

33. The provisions of cl 7.20 of the SLEP applies to land in the Jervis Bay region identified as “Cl 7.20” on the Clauses Map of the SLEP. The Statement of Environmental Effects explains that the provisions of this clause have been examined and concludes that the Proposed Development will not engage on the matters identified in cll 7.20(3)-(9) of the SLEP. Accordingly, I am satisfied that cl 7.20 SLEP does not pose a jurisdictional impediment to the granting of consent.

34. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) repealed the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), with effect from 1 October 2023. Section 4.2(1)(a) of the Sustainable Buildings SEPP provides that it does not apply to a DA submitted but not finally determined before 1 October 2023. As the DA was lodged on 29 September 2023 the BASIX SEPP continues to apply to this DA.

35. Section 27 of the EPA Reg provides that:

(1) A development application for BASIX development must be accompanied by—

(a) a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the development application is submitted on the NSW planning portal, and

(b) the other matters required by the BASIX certificate.

36. Pursuant to s 27 of the EPA Regulation, a BASIX Certificate was submitted with the DA and has been updated following production of the amended plans. A condition of consent is included which requires compliance with the commitments indicated in the updated BASIX Certificate in accordance with s 27 of the EPA Regulation.

37. 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 LEC Act. I adopt the reasons given by the parties and as I have set out above.

38. 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.

Notations

39. The Court notes that:

40. Shoalhaven City Council, as the relevant consent authority, has agreed, pursuant to s. 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA23/1784 on 19 February 2025 to rely upon the following plans and documents:

| 40 Plans | | Plan Number | Revision Number | Plan Title | Drawn by | Date of Plan | | A.000 | X | Title Sheet | Adm Architects | 18.02.2025 | | A.001 | X | Development Summary | Adm Architects | 18.02.2025 | | A.002a | X | Site Analysis | Adm Architects | 18.02.2025 | | A.002b | X | Site Analysis – Setbacks | Adm Architects | 18.02.2025 | | A.003 | X | Streetscape Elevation | Adm Architects | 18.02.2025 | | A.101 | X | Site Plan | Adm Architects | 18.02.2025 | | A.102 | X | Basement 02 Floor Plan | Adm Architects | 18.02.2025 | | A.103 | X | Basement 01 Floor Plan | Adm Architects | 18.02.2025 | | A.104 | X | Ground Floor Plan | Adm Architects | 18.02.2025 | | A.105 | X | Level 01 Floor Plan | Adm Architects | 18.02.2025 | | A.106 | X | Level 02 Floor Plan | Adm Architects | 18.02.2025 | | A.107 | X | Level 03 Floor Plan | Adm Architects | 18.02.2025 | | A.108 | X | Roof Plan | Adm Architects | 18.02.2025 | | A.201 | X | North & South Elevations (Elevation 01) | Adm Architects | 18.02.2025 | | A.202 | F | East & West Elevations (Elevation 02) | Adm Architects | 18.02.2025 | | A.203 | X | Sections AA & BB (Section 01) | Adm Architects | 18.02.2025 | | A.204 | X | Sections CC & DD (Section 02) | Adm Architects | 18.02.2025 | | A.205 | X | Detail Section | Adm Architects | 18.02.2025 | | A.206 | X | Detail Section 02 | Adm Architects | 18.02.2025 | | A.207 | X | Hydrant Booster – Enclosure Details | Adm Architects | 18.02.2025 | | A.301 | X | Pre and Post Adaption Plan | Adm Architects | 18.02.2025 | | A.403 | X | Sun Eye View Study 01 | Adm Architects | 18.02.2025 | | A.404 | X | Sun Eye View Study 02 | Adm Architects | 18.02.2025 | | A.501 | X | Height Plane Diagram | Adm Architects | 18.02.2025 | | A.601 | X | Colours & Materials Schedule & Fence Detail | Adm Architects | 18.02.2025 | | A.602 | X | Colour & Materials Schedule 02 | Adm Architects | 18.02.2025 | | A.701 | X | Demolition & Site Management Plan | Adm Architects | 18.02.2025 | | A.401 | X | Shadow Analysis 01 | Adm Architects | 18.02.2025 | | A.402 | X | Shadow Analysis 02 | Adm Architects | 18.02.2025 | | A.402a | X | Shadow Analysis 03 | Adm Architects | 18.02.2025 | | A.402b | X | Shadow Analysis 04 | Adm Architects | 18.02.2025 | | A.402c | X | Shadow Analysis 05 | Adm Architects | 18.02.2025 | | A.402d | X | Shadow Analysis 06 | Adm Architects | 18.02.2025 | | A.402e | X | Shadow Analysis 07 | Adm Architects | 18.02.2025 | | Sheet No. 2.0, Drawing No. 4841-F200 A | | Planting Plan - Ground | Clouston Associates | 18.02.2025 | | Sheet No. 2.1, Drawing No. 4841-F201 A | A | Planting Plan – Level 3 | Clouston Associates | 18.02.2025 |

| Other Documents | | Document title | Version number | Prepared by | Date of document | | Operational Waste Management Plan | Rev 2 | Jervis Bay Town Planning | 18 February 2025 | | Clause 4.6 Variation Request | Rev 3 | Jervis Bay Town Planning | 18 February 2025 | | Design Verification Report | Rev X | Adm Architects | 18 February 2025 | | BASIX Certificate | 1420213M_04 | Greenview Consulting Pty Limited | 19 February 2025 | | NatHERS Certificate – Class 2 Summary | 0011731610 | Greenview Consulting Pty Limited | 19.02.2025 |

2. The Applicant filed the amended development application with the Court on 19 February 2025.

Orders

40. The Court orders:

41. The Applicant’s cl 4.6 variation request dated 18 February 2025 written by Jervis Bay Town Planning pursuant to c. 4.6 of Shoalhaven Local Environment Plan 2014 (SLEP 2014) to vary the building height development standards in cl 4.3 of SLEP 2014 is upheld.

42. The appeal is upheld.

43. Development Application No. DA23/1784 lodged with the Respondent on 29 September 2023 (DA), for the demolition of existing buildings, construction of a residential flat building comprising 30 apartments and 67 parking spaces within a basement on land known as 56-60 Hawke Street, Huskisson, being Lots 1, 2 & 3 Section 8 of DP 758530, is determined by the granting of consent subject to conditions set out in ‘Annexure A’.

44. The Applicant pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the amendment of the application for development consent on 19 February 2025 as agreed or assessed.

E Espinosa

Commissioner of the Court

Annexure A

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