Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group Pty Ltd v Cumberland Council [2020] NSWLEC 1531 Hearing dates: Conciliation conference 25 August 2020, 28 September 2020 and 9 October 2020 Date of orders: 3 November 2020 Decision date: 03 November 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [16] below Catchwords: DEVELOPMENT APPLICATION – shop top housing – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Water Management Act 2000 Texts Cited: Apartment Design Guide Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (March 2020) Category: Principal judgment Parties: Universal Property Group Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) T Pickup (Solicitor) (Respondent) Solicitors: Swaab (Applicant) Local Government Legal (Respondent) File Number(s): 2019/399435 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Cumberland Council (Council) of Development Application No DA 2019/322/1 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates a vacant 1,060m2 parcel of land identified as Lot 12 in DP 1240043 at 10 Junia Avenue, Toongabbie (the site). It is located on the eastern side of Junia Avenue, within the Toongabbie Town Centre and approximately 400m walking distance from the Toongabbie Railway Station to the east. The width of the site narrows towards Junia Avenue, to which it has a frontage of 15.185m. A large portion of the front of the site is inundated from Girraween Creek during the Probable Maximum Flood (PMF) storm event. 3. The DA, as originally lodged with the Council on 21 August 2019, sought consent for a mixed use shop-top housing development involving the construction of a 5 storey building containing 2 commercial tenancies at ground level, 20 residential units in the 4 levels above, and 2 basement levels with parking for 29 cars, service bay, waste room and other facilities. 4. The DA was based on architectural plans prepared by The Bathla Group dated 12 July 2019 (the Revision A plans). The DA was advertised from 11 September 2019 to 9 October 2019 and one objection was received. The Applicant filed this Class 1 Application with the Court on 19 December 2019. On 28 January 2020 the Council filed its Statement of Facts and Contentions (SOFC), detailing 16 matters in contention. 5. The Court arranged a conciliation conference between the parties in accordance with the provisions of s 34(1) of the LEC Act. The conciliation conference was held on 25 August 2020, 28 September 2020 and 9 October 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference, at which I presided. 6. As a result of the discussions at the conciliation conference, and in response to the matters referred to in the SOFC, amended plans and additional information were submitted to Council and formed the basis of the final s34 agreement, that was filed with the Court on 8 October 2020. The amended plans, also prepared by The Bathla Group, are a combination of plans noted as the Revision D plans, dated 10 September 2020, and the Revision E plans, dated 28 September 2020, as referred to in the s34 agreement. 7. The main changes between the Revision A plans as originally submitted to the Council on 21 August 2019 and the plans the subject of the s34 agreement are: 1. The topmost residential Level 4 has been deleted, resulting in a reduction in the number of storeys from 5 to 4 and a reduction in the total number of residential units from 20 to 15. The deletion of one storey also results in the development now being compliant with the building height development standard. 2. The floor space ratio (FSR) has reduced from 1.83:1 to 1.38:1. 3. At ground level the finished floor level has been raised by 450mm to RL32.85, the total area used for business purposes was reduced from 284.1m2 to 141.5m2 and the two commercial tenancies were consolidated into one, at the north-east corner of the building. 4. The basement levels were reconfigured, including to provide a loading area and the number of parking spaces reduced from 29 to 25 due to the reduction in the number of residential units and area used for commercial premises. 5. The communal open space on the rooftop has been relocated in a westerly direction further towards the street, to increase the setback from the rear boundary. 1. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions, pursuant to s 4.16(1) of the EPA Act. 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. 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. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in [9] to [14] below. Satisfaction of jurisdiction 1. Holroyd Local Environmental Plan 2013 (HLEP) applies to the land. The proposed development is satisfactory in terms of its compliance with the HLEP for the following reasons: 1. The site is within the B2 – Local Centre Zone (B2 Zone) and the proposed shop top housing development is permissible with consent in the B2 Zone. 2. The objectives of the B2 Zone, found in the Table at the end of Part 2 of HLEP, have been considered as required by cl 2.3(2) of the HLEP, and are met by the proposal. 3. The development does not exceed the 17m maximum height of buildings development standard at cl 4.3 and satisfies the objectives of this standard. 4. The development does not exceed the 2.0:1 maximum FSR development standard at cl 4.4 and satisfies the objectives of this standard. 5. The DA is accompanied by a Heritage Impact Statement prepared by Dominic Steel dated 11 July 2020. It addresses the impact of the proposal on the St Edna's Church heritage item in the immediate vicinity of the site. The provisions of cl 5.10(5) of the HLEP have been duly considered based on this report. 6. The provisions of cl 6.3 of the HLEP regarding the availability of essential services have been considered and the site is serviced or capable of being serviced. 7. In relation to cl 6.8(3) regarding salinity the Council has formed the view that: 1. the development is not likely to have any impact in salinity processes on the land; 2. salinity is not likely to have an impact on the development in any meaningful way; and 3. a condition of consent (No. 46) has been imposed which requires details of the proposed method of construction be included in the engineering plans submitted as part of the Construction Certificate (CC) documentation. 1. In relation to cl 6.10 of the HLEP dealing with ground floor uses in a mixed use development in the B2 and B4 zones: 1. no residential accommodation or car parking is proposed for the ground level of the building; and 2. the ground floor has been reconfigured to improve the relationship between the ground floor uses and the external public areas adjoining the proposed building. 1. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. In relation to clause 7(4) the Parties agree: 1. the site is not within an investigation area; 2. development for the purpose referred to in Table 1 of the Contaminated Land Planning Guidelines (Table 1) is not known to have been carried out on the land; and 3. historic zoning controls for the site did not make lawful the carrying out of activities nominated in Table 1. Based on the above, cll 7(2) and 7(3) of the SEPP 55 have no application. 1. In relation to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), the Parties agree that the DA as amended satisfies the design quality principles provided at Schedule 1 of SEPP 65, and the relevant objectives and provisions of the Apartment Design Guide. Accordingly the provisions of cl 30(2)(a) of SEPP 65 have been satisfied. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) applies to the development. A revised BASIX Certificate number 943356M_03 dated 08 October 2020 has been submitted, demonstrating satisfaction of the relevant BASIX requirements. 3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the land. The relevant matters for consideration under cl 20(a) of the SREP have been considered. For the reasons set out in paragraph 31 of the SOFC, the proposed development has an acceptable impact in terms of those matters. 4. The DA was identified as "Integrated Development" in accordance with s 4.46 of the EPA Act under the provisions of the Water Management Act 2000. The DA was referred to the Natural Resources Access Regulator who advised that a controlled activity approval is not required. 5. 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. 6. The Court orders: 1. The Applicant is granted leave to amend its development application to rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural plans A-001, Rev E Cover Sheet Universal Property Group 28 September 2020 A-002, Rev D Compliance Table 10 September 2020 A-003, Rev C Location Plan 15 May 2020 A-004, Rev C Site Survey Plan A-005, Rev D Site Analysis 10 September 2020 A-006, Rev D Site Plan A-007, Rev E Basement 1 & 2 Plans 28 September 2020 A-008, Rev E Level Ground Plan A-009A, Rev D Levels 1 & 2 Plans 10 September 2020 A-009B, Rev D Levels 3, 4 & Roof Plans A-010, Rev D Elevations A-011, Rev D Sections A-012, Rev D Material and Finishes A-013, Rev D Building Height Compliance A-014, Rev D C.O.S Shadow Analysis A-015, Rev D Cross Ventilation A-016, Rev D Solar Access A-017, Rev D Area Calculation-FSR A-018, Rev D Landscape, C.O.S. & Deep Soil A-019, Rev D 3D Solar Access A-020, Rev D Typical Adaptable & Livable Unit A-021, Rev D Photomontage1 A-022, Rev D Photomontage 2 A-023, Rev D Ramp Sections A-025, Rev C Setback and Building Separation Diagram 15 May 2020 A-26, Rev D Solar Study – Adjoining Building 10 September 2020 A-28, Rev D Streetscape Elevation Landscaping Plans Sheet 1 of 2, Rev F Landscape Plan – Ground Floor Paul Scrivener Landscape Architecture 16 September 2020 Sheet 2 of 2, Rev F Roof Plan, Details, Notes and Planting Schedule 16 September 2020 Engineering Plans SW-1812B-LEC-01, Rev B Cover Sheet MultiPro Consultants Pty Ltd 15 September 2020 SW-1812B-LEC-02, Rev B Stormwater Concept Plan – Ground Floor SW-1812B-LEC-03, Rev B Stormwater Concept Plan – Upper Basement SW-1812B-LEC-04, Rev B Stormwater Concept Plan – Lower Basement SW-1812B-LEC-05, Rev B OSD Drainage Details and Calculations SW-1812B-LEC-06, Rev B Pump Details and Calculations SW-1812B-DA-07, Rev A Stormwater Drainage & Civil Details 24 April 2019 SW-1812B-LEC-08, Rev B Sediment & Erosion Control Plan 15 September 2020 Survey A1, Issue B, Sheet 1 of 1 Detail and Level Survey of Lot 12 in DP1240043 SDG Land Development Solutions 16 September 2020 1. The Applicant is granted leave to amend its development application to rely upon the following documents: Title Prepared by Date Acoustic Assessment Acoustic Dynamics 28 September 2020 Design Verification Statement Universal Property Group Undated Connection Offer –Standard Connection Service Endeavour Energy 2 September 2020 Revised Traffic and Parking Assessment Report Varga Traffic Planning Pty Ltd 22 September 2020 BASIX Certificate No. 943356M_03 8 October 2020 1. The Applicant agrees to pay the Council's costs of amending the development application pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $9,000, payable within 14 days upon receipt of invoice from the Respondent. 2. The appeal is upheld. 3. Development Application No. DA-2019/322/1, for the construction of a four storey mixed use development consisting of 15 residential units and 1 commercial tenancy with basement car parking on Lot 12 in DP1240043 on land known as 10 Junia Avenue, Toongabbie, is approved subject to the conditions at Annexure A. ……………………………….. J Bindon Acting Commissioner of the Court Annexure A (369601, pdf) ********** 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: 03 November 2020