Land and Environment Court New South Wales Medium Neutral Citation: JGM Property Investments Pty Ltd v Newcastle City Council [2020] NSWLEC 1583 Hearing dates: Conciliation conference on 9 September 2020 Date of orders: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Class 1 Before: Dickson C Decision: See Orders at [8] Catchwords: DEVELOPMENT APPLICATION – Mixed Use Development – conciliation conference – amended plans – agreement between the parties – orders Legislation Cited: Coal Mine Subsidence Compensation Act 2017 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Liquor Act 2007 Newcastle Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: JGM Property Investments Pty Ltd (Applicant) Newcastle City Council (Respondent) Representation: Counsel: A Whealy (solicitor) (Applicant) T To (Respondent) Solicitors: Mills Oakley (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2020/171024 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of their development application (DA 2018/01301) by Newcastle City Council. Since the refusal of their application the Applicant has amended the development. The amended development application seeks consent for demolition of existing structures and construction of a 5-storey mixed use development containing commercial/retail spaces and serviced and residential apartments. The development is proposed at 59 Darby Street, Cooks Hill (Lot 63 & 64 DP 1109172, Lot 53 DP 151167, Lot 27 DP 150134, Lot 44 DP 150066). 2. The development application, as amended, proposes the following development: * demolition of all existing structures; * earthworks; * basement with 67 car parking spaces and services; * retail podium with ground floor commercial/ retail spaces fronting Darby Street, nine at-grade parking spaces, plant and services, vehicle and pedestrian access, and public forecourt; * Building A: Serviced Apartment tower containing 30 apartments and roof top terrace; * Building B: residential apartment tower comprising 24 units with roof top terrace; and * Associated landscaping, services and necessary site infrastructure. 1. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 9 September 2020. Following the conciliation, the development application was amended and an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The development application is made with the consent of the owner of the land, Markovic Hotels Pty Ltd. 2. Clause 45 of State of Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the development due to the proximity of overhead power lines on Queens Street and the works proposed in proximity to the Tyrell Street Substation. Newcastle Council referred the application to Ausgrid. A referral response was received on 12 December 2018 raising no objection to the development application. 3. Clause 104: Traffic Generating development of the Infrastructure SEPP applies as the development falls with the forms of development listed at Schedule 3 of the instrument. A referral to Transport for NSW is required. A referral response was received on 5 December 2018 raising no objection to the development application. Consistent with cl 104(3)(b) of Infrastructure SEPP I am satisfied that the accessibility of the site, and any potential traffic safety, road congestion and parking implications for the proposed development will be acceptable. 4. The proposed development is a residential apartment development. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the development. In determining the development application, I have taken into consideration, the advice of the design review panel, the design quality of the development when evaluated against the design quality principles and the Apartment Design Guide (ADG). I am satisfied that the development demonstrates that adequate regard had been given to the design quality principles and the objectives of the relevant design criteria in the ADG. Further, the application is accompanied by a design verification statement as required by cl 50(1A) of the Environmental Planning and Assessment Regulation 2000. 5. As required by cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. In determining the application, I have given consideration to the Preliminary Site Investigation prepared by EP Risk and I am satisfied that the site is considered to be suitable for the proposed development. 6. An updated BASIX certificate dated 27 October 2020 has been provided to satisfy the requirement of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 7. Under s22 of the Coal Mine Subsidence Compensation Act 2017, consent is required from the Mine Subsidence Board. The original development application plans were stamped by the Mine Subsidence Board. I accept the agreed submission of the parties that the amended plans retain the building envelope adopted in the original development application and do not pose any additional floors or excavation. I am satisfied that the amended plans are within the scope of a reasonable amendment and do not require the Mine Subsidence Board to stamp the amended plans. 8. The proposed works include the removal of a row of casuarina trees along the northern boundary of the site and existing street trees on Darby Street and Queen Street. The provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 apply: cl 5. In granting consent, I am satisfied that the removal of these trees will not adversely affect the heritage significance of the heritage conservation area 9. The site is zoned B4 Mixed Use under Newcastle Local Environmental Plan 2012 (LEP 2012). The use of the site for commercial development (business, office and retail premises), tourist and visitor accommodation (serviced apartments) and shop top housing are permissible with consent. I have had regard to the objectives of the zone in determining the application: cl. 2.3(2) LEP 2012. 10. Consent is sought for demolition: cl. 2.7 LEP 2012. 11. The development complies with the development standard for floor space: cl. 4.4 LEP 2012 but seeks a variation of the maximum height control applicable pursuant to cl. 4.6 of LEP 2012. The maximum height standard applicable to the site is 14m. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by KDC Planning dated October 2020. This request accords with the amended plans and seeks a variation to the height development standard. I have reviewed the request and, in accordance with cl 4.6 of LEP 2012, I am satisfied that: * The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012). * The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2012). * On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met. * For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B4: Mixed Use Development zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met. * Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. * The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control. 1. The subject site is mapped within a Heritage Conservation Area (HCA) and is in proximity of two heritage items: the Newcastle War Memorial and the Baptist Tabernacle. As required by cl 5.10(4) of LEP 2012 I have considered the effect of the proposed development on the HCA and these items. I am satisfied the development will not detrimentally impact their significance. 2. Clause 6.1 'Acid Sulfate soils' of LEP 2012 applies to the site which is mapped as containing potential Class 4 and Class 5 Acid Sulphate Soils. The development requires works more than two metres below the natural surface and therefore requires consent. I am satisfied that the proposed development meets the requirements of cl 6.1(3) of LEP 2012. 3. Clause 6.2 'Earthworks' of LEP 2012 applies to the site. I am satisfied that the proposed development meets the requirements of cl 6.2(3) of LEP 2012. 4. Clause 6.3: Serviced Apartments of LEP 2012 applies to the development. The objective of the clause is to prevent substandard apartment design. Given the substantial compliance with SEPP 65 and the ADG, I am satisfied that the requirements of this clause are met. 5. Clause 6.5 'Licensed Premises' of LEP 2012 requires that, before consent can be granted for a 'licensed premise' (as defined in the Liquor Act 2007), consideration must be given to potential impacts on public safety. A Crime Risk Assessment Report has been prepared for the development. I have considered this report and any potential impact on public safety arising from the development in determining the application. 6. The site falls within land subject to the Local Provisions that apply to the Newcastle City Centre: cl. 7.2 of LEP 2012. 7. In accordance with cl. 7.5 Design Excellence of LEP 2012 development consent cannot be granted unless the consent authority is satisfied that the development demonstrates design excellence. Further, in determining the application I am required to consider the matters listed at cl. 7.5(3) of LEP 2012. Having considered those matters I am satisfied that the development demonstrates design excellence. 8. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted for the applicant to rely on the amended plans and additional information as referred to in the conditions of consent at Annexure B and listed at Annexure A. 2. Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent's costs 'thrown away' as a result of the amendment as agreed or assessed. 3. The applicant's amended written request under clause 4.6 of the Newcastle Local Environmental Plan 2012, prepared by KDC and dated October 2020, seeking a variation of the development standard for height under clause 4.3 of the Newcastle Local Environmental Plan 2012 is upheld. 4. The appeal is upheld. 5. Development Application No. DA2018/1301 determined by the respondent on 10 December 2019 and as now amended with the plans, drawings and material listed at Annexure A for the demolition of all existing structures and construction of a 5-storey mixed use development containing commercial/ retail spaces and serviced and residential apartments at 59 Darby Street, Cooks Hill is approved subject to the conditions annexed to this agreement at Annexure B. ………………………… D M Dickson Commissioner of the Court Annexure A (56717, pdf) Annexure B (270234, 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: 25 November 2020