Land and Environment Court New South Wales Medium Neutral Citation: Arkibis Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1664 Hearing dates: Conciliation conference on 19 October 2020, 24 November and 8 December 2020 Date of orders: 21 December 2020 Decision date: 21 December 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [12] Catchwords: DEVELOPMENT APPLICATION – subdivision and dwelling house development – cl 4.6 variation to height – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Sydney Local Environmental Plan 2012 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020) Category: Principal judgment Parties: Arkibis Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) P Canning (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2020/197250 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the City of Sydney Council of Development Application D/2019/554 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 645m2 parcel of land identified as Lot 12 in DP 24125 at 4 Coneill Place Forest Lodge (the site). The DA as submitted to the Council of the City of Sydney (Council) on 27 May 2019 sought consent for demolition of the existing dwelling, the construction of two detached dwelling houses and subdivision of the land into two allotments. The DA was exhibited between 11 June 2019 and 3 July 2019, with four submissions received. 3. During the course of the assessment the DA was amended to address flood levels, reduce the height of the buildings and amend the southern elevation. The amended proposal was advertised between 23 October 2019 and 7 November 2019, with one submission received, and again between 22 January 2020 and 6 February 2020 resulting in one submission. 4. On 25 March 2020 the DA, as amended and illustrated in the DA plans prepared by Arkhaus, Issue E dated 11 December 2019 (the Issue E plans), was refused by Council staff under delegated authority. On 3 July 2020 the Applicant lodged this Class 1 Appeal with the Court. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 19 October 2020, 24 November 2020 and 8 December 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference. No oral submissions from objectors were taken as a prelude to the conciliation conference. 6. Further minor amendments to the DA plans, prepared by Arkhaus dated 20 October 2020, (the final plans) were then made to address concerns raised by Council during the s34 conference and in the public submissions. The parties advised the Court that they had reached an agreement and provided to the Court a copy of that agreement along with draft conditions on 27 November 2020. On 8 December 2020, the parties filed with the Court a set of the final plans, the revised Clause 4.6 variation request (prepared by Mr Tony Robb, dated 20 October 2020) relating to the height of buildings development standard and two revised BASIX certificates (one for each dwelling house): references No. 997397S_03 and 997391S_03 dated 29 October 2020. 7. The main changes between the Issue E plans refused by Council and the final plans the subject of the s34 agreement are: 1. The garage at 4 Coneill Street has been moved closer to the street by approximately 3.6m, and the garage at 4A has moved closer to the street by approximately 1.0m resulting in a more pronounced staggering of the front alignments. 2. At the upper level of both dwellings, the rear balconies facing the adjoining Johnson Creek reserve have been removed and the upper level setbacks from this boundary have been increased by approximately 2.0m. 3. The maximum height of the dwellings has been marginally reduced from RL 9.767 to RL 9.4. 1. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Sydney Local Environmental Plan 2012 (SLEP 2012) are: 1. The development is for subdivision of land and, upon subdivision, for use as semi-detached dwellings, which is a use permissible with consent in the R1 General Residential Zone (R1 Zone), and is consistent with the objectives of the R1 Zone. 2. The maximum height of the development, at up to 6.8m (as noted on drawing DA 02 dated 20 October 2020) contravenes the 6.0m height of buildings development standard at cl 4.3 of the SLEP 2012. 3. The parties agree that the written request seeking a variation to the height standard, dated 20 October 2020, and prepared pursuant to cl 4.6 of SLEP 2012 is acceptable and should be upheld. For the reasons contained in the Clause 4.6 variation request, I am satisfied that the applicant's written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the SLEP 2012 are therefore satisfied. 4. I am also satisfied, for the reasons set out in the cl 4.6 variation request, that the written request has adequately addressed the matters required to be demonstrated under cl 4.6(3) of the SLEP 2012, and the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R1 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the SLEP 2012 are therefore satisfied. 5. I accept the advice of the parties that the development does not contravene the floor space ratio (FSR) development standard at cl 4.4 of the SLEP 2012 and that it is consistent with the objectives of cl 7.14 relating to acid sulphate soils. 6. The provisions of cl 6.21 of SLEP 2012 specify that development consent must not be granted to development unless, in the opinion of the consent authority, the proposed development exhibits design excellence. The development as amended is satisfactory in this regard. 1. The jurisdictional matters in relation to other relevant statutory instruments are: 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cll 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. The Council considered whether the land was likely to be contaminated as part of its assessment of the DA. The Council's "Development Application Assessment" report (signed by Adrian McKeown and Nicola Reeve, undated) undertook an assessment under the provisions of SEPP 55 and concluded: "The City's Health Unit is satisfied that subject to recommended conditions relating to unexpected finds and disposal of asbestos and site soils, the site can be made suitable for the proposed use." 1. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), BASIX Certificates numbered 997397S_03 and 997391S_03 dated 30 October 2020 have been provided demonstrating compliance with the BASIX SEPP, and Condition (A)(2) of the consent refers to these Certificates. Disposal of proceedings in accordance with the parties' decision 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' agreement. 2. The Court orders: 1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at operational condition 1 in Annexure A. 2. The parties agree that the applicant's updated clause 4.6 written request seeking to justify the contravention of clause 4.3 of Sydney Local Environmental Plan 2012 adequately addresses the matters required to be addressed and is in the public interest as it is consistent with the objectives of clause 4.3. 3. The appeal is upheld. 4. Development application D/2019/554 seeking development consent for the demolition of the existing dwelling, subdivision of the site into 2 lots and construction of two detached dwellings of two storeys in height with a swimming pool on each is approved subject to the conditions in Annexure A. 5. The parties agree that the amendments are minor for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (290818, pdf) Site Plan (294602, 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: 21 December 2020