Land and Environment Court New South Wales Medium Neutral Citation: Gisona Pty Ltd v Northern Beaches Council [2020] NSWLEC 1669 Hearing dates: Conciliation conference on 16 November 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Class 1 Before: Smithson AC Decision: Refer to orders below at [24] Catchwords: DEVELOPMENT APPLICATION — residential flat building — conciliation conference — agreement between the parties — orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Manly Development Control Plan 2013 Category: Principal judgment Parties: Gisona Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Gough (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Storey and Gough (Respondent) File Number(s): 2020/59581 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal by Gisona Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Northern Beaches Council (the Council) of Development Application No. DA2018/1870 (the application). 2. The application sought consent under the EPA Act for the demolition of an existing dwelling house and the construction (and strata subdivision) of a residential flat building (RFB) containing five apartments at 16 Upper Gilbert Street, Manly (the site). 3. The site is situated on the north-eastern corner of Upper Gilbert Street and James Street, is generally regular in shape, and has an area of 559m². 4. The Council notified the application and 26 submissions were received objecting to the proposal. Issues raised included: the overdevelopment of the site in terms of height and floor space ratio (FSR); overshadowing; visual, acoustic, view loss, traffic, access, parking, privacy, heritage, and construction impacts; and impacts on the streetscape and local character. 5. On 24 February 2020, the Applicant commenced the subject appeal. 6. In a Statement of Facts and Contentions (SFC) filed with the Court, contentions raised by the Council regarding the application included: FSR non-compliance and overdevelopment; inadequate setbacks; poor internal amenity; impacts to adjoining properties (including view loss, and visual and acoustic privacy); and concerns with vehicle access and egress. 7. The development exceeded the maximum FSR permissible under the Manly Local Environmental Plan 2013 (the LEP). It also did not comply with a number of the provisions of the Manly Development Control Plan 2013 (the DCP) and State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), including the associated Apartment Design Guide (ADG). 8. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. Prior to the conciliation, the proposed development was amended in an endeavour to address the contentions raised. 9. As a result of the amendments, an agreement was reached between the parties and filed with the Court under s 34(3) of the LEC Act. 10. As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court can make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 11. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 12. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. 13. However, the amended plans on which the agreement was based reduced the extent of FSR non-compliance and implemented design changes to reduce view loss and address privacy and amenity impacts. 14. The Council formed the view that the amended plans and documentation adequately addressed the contentions outlined in the SFC and the relevant issues raised by objectors, including potential view impacts. 15. I am satisfied that all of the applicable pre-conditions to the granting of consent have been met. 16. Firstly, the site is zoned R1 Low Density Residential under the LEP and the use is permissible with consent in that zone. The objectives of the R1 zone have also been considered in the amended application. 17. Secondly, the development (even as amended) contravenes the maximum permissible FSR at cl 4.4 of the LEP of 0.75:1. The development has an FSR of 0.946:1 which is a 26.2% variation to the standard. However, the Applicant submitted a written request under cl 4.6 of the LEP seeking to justify the FSR contravention sought in the amended application. This request was supported by the Council and submitted with the agreement. 18. I have reviewed and considered the cl 4.6 written request accompanying the agreement and am satisfied, for the reasons that follow, that the request demonstrates that compliance with the maximum FSR standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention sought. Further, that the development will be in the public interest because it is consistent with the objectives of the standards and for development in the R1 zone. 19. The concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5). 20. The reasons contained in the cl 4.6 written request in support of the FSR variation sought, on which my finding of satisfaction with the proposed variation is based, can be summarised as follows: 1. The amended proposal is of a bulk and scale that is consistent with nearby development, much of which exceeds the current FSR control. 2. The additional floorspace does not cause unreasonable loss of views, loss of solar access, or privacy impacts. 3. The development complies with the maximum height requirements of the LEP. 4. The proposed development will not obscure any important townscape or significant landscape feature. 5. The side setbacks proposed are not inconsistent with those of adjoining developments. Deep soil landscaped areas around the perimeter of the site also help to maintain an appropriate visual relationship with these adjoining buildings. 6. The topography of the site facilitates a design that locates a significant portion of floor space below the street where it does not contribute to bulk and scale, but where internal amenity can still be achieved. 7. In summary, the objectives of the standard are met by ensuring the building is compatible with the bulk, scale, streetscape and existing and desired future character of the locality, and the scale is limited to preserve the amenity of neighbouring properties. 8. The zone objectives are also met given the nature of development proposed. 1. In addition to compliance with cl 4.6, the other applicable pre-conditions to consent contained in the LEP have been satisfied. 2. The development was amended to address concerns raised in terms of compliance with the design requirements of SEPP 65, the ADG and the DCP. A Design Verification Statement for the amended application was also provided. 3. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 4. Accordingly, the Court orders that: 1. The Applicant is granted leave to amend the development application to rely upon the following documents annexed hereto and marked "A": 1. Architectural Plans Architectural Plans - Endorsed with Council's stamp Drawing No. Dated Prepared By DA03 Site Plan - Revision 3 15/11/2020 Platform Architects DA04 Basement Plan - Revision 3 15/11/2020 Platform Architects DA05 Ground Floor Plan - Revision 3 15/11/2020 Platform Architects DA06 First Floor Plan - Revision 3 15/11/2020 Platform Architects DA07 Second Floor Plan -Revision 3 15/11/2020 Platform Architects DA08 Roof Plan - Revision 3 15/11/2020 Platform Architects DA09 Section 1-1 - Revision 3 15/11/2020 Platform Architects DA10 Section 2-2 - Revision 3 15/11/2020 Platform Architects DA11 Section A-A - Revision 3 15/11/2020 Platform Architects DA12 West Elevation (James Street) - Revision 3 15/11/2020 Platform Architects DA13 East Elevation - Revision 3 15/11/2020 Platform Architects DA14 South Elevation (Upper Gilbert Street) - Revision 3 15/11/2020 Platform Architects DA15 North Elevation - Revision 3 15/11/2020 Platform Architects 1. Landscape Plans Landscape Plans Drawing No. Dated Prepared By LSK.01 Landscape Sketch Plan Revision F 17 November 2020 Scape Design LSK.02 Planting Plan Revision G 17 November 2020 Scape Design 1. Documents Document Dated Prepared By Updated Clause 4.6 Variation Request – Floor Space Ratio 16 November 2020 Boston Blyth Fleming Town Planners Design Verification Statement 16 November 2020 Platform Architects BASIX Certificate No 968072M_03 3 December 2020 Eco Certificates Pty Ltd NatHERS Certificate No. 0005457370 3 December 2020 Eco Certificates Pty Ltd Quantity Surveyor Report 11 December 2020 Coutts Cost Consulting Pty Ltd 1. Pursuant to section 8.15(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 of the application, as agreed or assessed. 2. The Applicant's written request under clause 4.6 of the Manly Local Environmental Plan 2013 seeking a variation of the development standard for floor space ratio under clause 4.4 of the Manly Local Environmental Plan 2013 is upheld. 3. The appeal is upheld. 4. Development Application No. DA 2018/1870 for demolition of existing dwelling and construction of residential flat building and strata subdivision at 16 Upper Gilbert Street, Manly is approved subject to the conditions in Annexure B. ……………………….. Jenny Smithson Acting Commissioner of the Court Annexure A (9477982, pdf) Annexure B (289187, 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: 22 December 2020