Land and Environment Court New South Wales Medium Neutral Citation: Bridgelane Property 16 Pty Ltd v Willoughby City Council [2020] NSWLEC 1631 Hearing dates: Conciliation conference on 4 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (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 s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away as a result of the amendment to the application for development consent in the amount of $11,876.20 within 28 days of the date of this agreement. (3) The Applicant's amended written request under clause 4.6 of Willoughby Local Environmental Plan 2012, prepared by City Plan Strategy and Development Pty Ltd and dated September 2020, seeking a variation of the development standard for height under clause 4.3 of the Willoughby Local Environmental Plan 2012 is upheld. (4) The appeal is upheld. (5) Development Application No. DA2020/85 lodged on 8 April 2020, as amended, for the demolition of existing structures and construction of a shop top housing development with basement car parking, landscaping and associated works at 3 The Postern, Castlecrag and 120 Edinburgh Road, Castlecrag is approved subject to the conditions annexed to this agreement at Annexure B. Catchwords: DEVELOPMENT APPLICATION – demolition – shop top housing – commercial premises – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Willoughby 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 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Category: Principal judgment Parties: Bridgelane Property 16 Pty Ltd (Applicant) Willoughby Council (Respondent) Representation: Counsel: N Sandstrom (Solicitor) (Applicant) M Winram (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2020/155414 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Bridgelane Property 16 Pty Ltd (the Applicant) against the Respondent's deemed refusal of their development application DA2020/85. The development application seeks consent for demolition of all structures on site and construction of a shop-top housing development consisting of underground parking for 10 cars, 4 bicycles and 1 motorcycle, 3 commercial premises and 7 apartments. Ancillary to the development several trees on the site and a street tree are proposed for removal. The development is proposed at 3 The Postern, Castlecrag (SP 20909). The Development Application also proposes driveway and parking works on the adjoining northern site which is legally described as Lot 1 in Deposited Plan 591269 and known as 120 Edinburgh Road, Castlecrag. 2. 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. 3. The appeal was listed for conciliation on 4 December 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). At the conciliation conference, 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 was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 4 December 2020. 4. 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. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), consent has been provided by the owners of 3 The Postern, Castlecrag and 120 Edinburgh Road, Castlecrag – the land the subject of the Development Application. 2. Clause 45 of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the development due to the proximity of overhead power lines adjacent the site's south eastern corner. Willoughby Council referred the application to Ausgrid. A referral response was received raising no objection to the development application. 3. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) applies to the site. A Stage 1 Contamination Assessment, a Detailed (Stage 2) Site Investigation and a Remediation Action Plan (RAP) prepared by JK Environments forms part of the application before the Court. The RAP concludes that the site can be made suitable for the proposed development provided that its recommendations are implemented. The conditions of consent mandate the implementation of the RAP. Consistent with s 7(1) of SEPP 55 I am satisfied that the site requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, and I am satisfied that the land will be remediated before the land is used for that purpose. 4. 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 EP&A Regulation. 5. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 6. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the subject site as it is within the Sydney Harbour Catchment. In determining the development application, I have taken into consideration the matters in Division 2 of the instrument as are relevant to the development application. 7. The proposed development is for the purposes of a "shop top" as defined in the Dictionary to Willoughby Local Environmental Plan 2012 (LEP 2012). 8. Pursuant to LEP 2012, the subject site is zoned B1 – Neighbourhood Centre. Development for the purposes of a "shop top housing" is permissible with consent in accordance with the Land Use Table relating to the B1 – Neighbourhood Centre in LEP 2012. In determining the development application, I have had regard to the objectives of the zone. 9. The development application complies with the development standard for floor space ratio in LEP 2012 but seeks a variation of the maximum height control applicable pursuant to cl 4.3 of LEP 2012. The maximum height standard applicable to the site is 9m. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by City Plan Strategy and Development Pty Ltd dated September 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: 1. 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). 2. 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). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met. 4. 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 B1: Neighbourhood Centre 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. 5. 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. 6. 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 located within the Griffin Heritage Conservation Area. The development application is accompanied by a Heritage Impact Statement prepared by Urbis Pty Ltd. As required by cl 5.10(4) of LEP 2012, in determining the development I have considered the effect of the proposed development on the heritage significance of the Griffin Heritage Conservation Area. 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. However, the development does not involve works within 500m of Class 1,2 or 3 soils or below 5m AHD. I am satisfied cl 6.1(3) of LEP 2012 does not apply to the development. 3. Clause 6.2 'Earthworks' of LEP 2012 applies to the site. After reviewing the documents supporting the development application, I am satisfied that the proposed development meets the requirements of cl 6.2(3) of LEP 2012. 4. 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 s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away as a result of the amendment to the application for development consent in the amount of $11,876.20 within 28 days of the date of this agreement. 3. The Applicant's amended written request under clause 4.6 of Willoughby Local Environmental Plan 2012, prepared by City Plan Strategy and Development Pty Ltd and dated September 2020, seeking a variation of the development standard for height under clause 4.3 of the Willoughby Local Environmental Plan 2012 is upheld. 4. The appeal is upheld. 5. Development Application No. DA2020/85 lodged on 8 April 2020, as amended, for the demolition of existing structures and construction of a shop top housing development with basement car parking, landscaping and associated works at 3 The Postern, Castlecrag and 120 Edinburgh Road, Castlecrag is approved subject to the conditions annexed to this agreement at Annexure B. ………………………… D M Dickson Commissioner of the Court Annexure A (1993586, pdf) Annexure B (398692, 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: 15 December 2020