Land and Environment Court New South Wales Medium Neutral Citation: Columbia Lane Development Pty Limited v Strathfield Council [2021] NSWLEC 1049 Hearing dates: Conciliation conference on 20 November 2020 Date of orders: 29 January 2021 Decision date: 29 January 2021 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [39] Catchwords: DEVELOPMENT APPLICATION – 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 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 Strathfield Local Environmental Plan 2012 Water Management Act 2000 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Columbia Lane Development Pty Limited (Applicant) Strathfield Council (Respondent) Representation: Counsel: J Ling (Solicitor) (Applicant) J Coradini-Bird (Solicitor) (Respondent) Solicitors: Thomson Geer (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/121747 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the Sydney Eastern City Planning Panel's determination of Development Application No. 2019/143 ('application') over land at 11-13 and 15-17 Columbia Lane, Homebush. 2. The application is for site preparation works including demolition, excavation and remediation, the construction of a mixed use development comprising of 2 residential towers (Building A at 25 storeys and Building B at 26 storeys) connected by an 8 storey podium accommodating rooftop communal open space. There would be a total of 360 apartments, 2 ground floor retail premises and a further rooftop terrace to Building A, situated over 4 levels of basement parking containing 381 car parking spaces, with associated ground floor communal open space and entry court yard. There would also be landscaping works and construction of an extension to existing Nipper Street. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 20 November 2020, and at which I presided. After more time was given, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, indicating it is a decision that the Court could have made in the proper exercise of its function. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 5. 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 certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (written advice provided to the Court 9 December 2020 and follow-up advice provided 8 January 2021). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below. 6. Firstly, I accept the parties' advice that the development application was made with the written consent of Jian Qin Zhang, the owner of the site in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 ('EP&A Regulation'). 7. The environmental planning instruments of relevance are as follows: 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 ('SEPP BASIX'); 2. State Environmental Planning Policy (Infrastructure) 2007 ('SEPP Infrastructure'); 3. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development ('SEPP 65'); 4. State Environmental Planning Policy No. 55 – Remediation of Land ('SEPP 55'); and 5. Strathfield Local Environmental Plan 2012 ('SLEP 2012'). 1. Each of these are considered in turn below. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The Development Application is accompanied by BASIX Certificate No. 1030689M_03 dated 1 October 2020 to satisfy the requirement in Schedule 1 of the EP&A Regulation. State Environmental Planning Policy (Infrastructure) 2007 1. Clause 45 of SEPP Infrastructure applies in circumstances where the Development Application involves development that is within 5m of an exposed overhead electricity power line (see cl 45(1)(b)(iii)). The development application was referred to Ausgrid in accordance with cl 45(2) of SEPP Infrastructure. Ausgrid provided consent subject to the imposition of conditions, which have been included in the conditions of consent imposed by the Respondent. 2. The Development Application was referred to Sydney Trains in accordance with cll 85 and 86. Sydney Trains provided concurrence subject to the imposition of conditions of consent, which have been included in the conditions of consent imposed by the Respondent. 3. Clauses 87 and 102 apply to the Development Application and provides that the consent authority must not grant consent unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded – 1. in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am, 2. anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. 1. An assessment of cll 87 and 102 is provided in the Acoustic Assessment Report prepared by EMM dated 17 July 2020 (located at Tab 2H of Exhibit JL-1 to the affidavit of Joanna Ling dated 27 November 2020). Compliance with the Acoustic Assessment Report is incorporated in the conditions of consent. 2. The Development Application was referred to Transport for New South Wales ('TfNSW') (formerly known as Roads and Maritime Services) as it involves: 1. development with frontage to a classified road (Parramatta Road) (cl 101); and 2. development in excess of 300 residential dwellings, identified as 'traffic generating development' (cl 104). 1. TfNSW raised no objection to the proposed development, subject to the imposition of conditions of consent, which have been included in the conditions of consent imposed by the Respondent. Having regard to the response from TfNSW and the conditions imposed, I am satisfied of the matters in cl 101(2) of SEPP Infrastructure. 2. I accept the above advice from the parties. The jurisdictional requirements in relation to SEPP Infrastructure are satisfied. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development 1. SEPP 65 brings forward certain requirements, as does the EP&A Regulation, relevantly: 1. Clause 50(1A) of the EP&A Regulation requires a development application that relates to residential apartment development to be accompanied by a design verification statement ('DVS') meeting stipulated requirements. A DVS was prepared by mosca pserras architects (Tab 2B of Exhibit JL-1 to the affidavit of Joanna Ling dated 27 November 2020) addressing the design quality principles and demonstrating how the objectives of the Apartment Design Guide ('ADG') have been achieved. 2. Mindful of the requirements of cl 28(2) of SEPP 65, I have taken into consideration: the advice of the design review panel (referenced in Council's assessment report to the Sydney Eastern City Planning Panel Meeting of 1 October 2020 ('Council assessment report'), the design quality of the development when evaluated in accordance with the design quality principles, and the ADG. 3. Mindful of the advice of the parties, including in regard to an Urban Design Peer Review located at Tab 2D to Exhibit JL-1, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria, addressing cl 30(2) of SEPP 65. State Environmental Planning Policy No. 55 – Remediation of Land 1. The Development Application is required to comply with the provisions of SEPP 55, and in particular, cl 7(1). 2. A Detailed Site Investigation (at Tab 2N of the Class 1 Application) ('DSI') was undertaken by STS GeoEnvironmental to investigate the nature and extent of contaminants potentially present within the soils and groundwater across the site. 3. The DSI concludes that the site can be made suitable for the proposed high density residential and open public space land uses in accordance with the proposed plans, subject to the preparation and implementation of a remedial action plan ('RAP') to address the identified soil and groundwater impacts. 4. A RAP (at Tab 2O of the Class 1 Application) has been prepared by EI Australia. The RAP sets out the methods and procedures (including contingency management and unexpected finds protocol) that will be used to ensure the site is remediated to a condition suitable for residential land use, without the need for ongoing environmental monitoring. 5. I am satisfied that the requirements of cl 7(1) have been addressed. Strathfield Local Environmental Plan 2012 1. The Site is zoned B4-Mixed Use. The proposal is permissible with consent in this zone. 2. Clause 4.1A prescribes a minimum lot size of 1,000m2 for residential flat building development in the B4 Mixed Use zone. The site has an area of 6,568m2. 3. The Site is identified as within Key Site 92 under cl 4.3A and is identified as having a maximum height control of 80m, however part of the Site is subject to a 0m height control under cll 4.3A and 4.3. I accept the advice of the parties that the proposal complies with cll 4.3A and 4.3, as it proposes a maximum building height of 80m and provides a park in the part of the Site that is subject to the 0m height control. 4. The Site is subject to a maximum floor space ratio control of 5:1 pursuant to cll 4.4A and 4.4. The Development Application plans show a gross floor area of 30,839m2. I accept the advice of the parties that the proposal has a floor space ratio of 4.69:1 and is therefore compliant with the applicable controls. 5. The Site is located in the vicinity of the following heritage items identified in Schedule 5: I29, "Railway Bridge with Arnott's sign", Parramatta Road, Homebush; I34, "Railway Viaduct over Powell Creek", Railway land, Homebush. 1. Clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the heritage items. I note that a Heritage Interpretation Strategy is located at Tab 2G to Exhibit JL-1. Condition 26 requires this document to be updated prior to a construction certificate for above ground works being issued. Consideration has been given to the effect of the proposed development on the heritage significance of the items in accordance with cl 5.10(4) requirements. 2. The Site is identified as Class 5 pursuant to cl.6.1 and the Acid Sulfate Soils Map. Clause 6.1(3) provides that development consent must not be granted under this clause for the carrying out of works unless an Acid Sulfate Soils Management Plan ('ASSMP') has been prepared for the proposed works in accordance with Acid Sulfate Soils Manual and has been provided to the consent authority. This requirement is complied with (ASSMP is located at Tab 2P of the Class 1 Application with Condition 53 making appropriate reference to it). 3. Before granting development consent for earthworks (or for development involving ancillary earthworks), cl 6.2(3) requires the consent authority to consider the following matters: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. The proposal involves earthworks including excavation to accommodate four (4) levels of basement. The proposed excavation was reviewed by the Natural Resources Access Regulator who confirmed that for the purposes of the Water Management Act 2000 neither general terms of approval nor a controlled activity approval is required. The proposal was also referred to Sydney Trains who offered no objections to the proposed excavation, subject to specific conditions of consent. I further note that the Council assessment report gave consideration to cl 6.2 and indicated the objectives of the clause would be complied with subject to the imposition of conditions as proposed. I am satisfied that consideration has been given to the relevant matters at cl 6.2(3). 2. Clause 6.3 relates to flooding and as the site is partially affected by mainstream flooding and is partially at or below the flood planning level it applies in this instance. A consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied in regard to certain matters listed as subclauses (a)-(e) in cl 6.3. I have received advice from Council's experts in regard to each of these considerations, as follows: 1. the development is compatible with the flood hazard of the land: The development is compatible with the flood hazard of the land in circumstances where the subject land is only partially affected by mainstream flooding and flood hazard is negligible as proposed building footprint is not within flood affected area. 1. the development is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties: The development is not likely to significantly adversely affect flood behaviour in circumstances where the subject land is downstream and adjacent to Powells Creek therefore stormwater/rainfall runoff from site will be discharged to the Creek hence no detrimental increases in the potential flood affectation of other development or properties. 1. the development incorporates appropriate measures to manage risk to life from flood: The proposed building ground floor provides freeboard more than the required minimum 500mm and basement ramp crest levels more than the minimum 300mm freeboard for basement ramps 1. the development is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses: The development is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses in circumstances where part of the subject land partially affected area by mainstream flooding is the community open space and it has been vegetated to mitigate erosion, doesn't have riparian vegetation and building footprint setback far from watercourse bank hence doesn't destabilise watercourse bank. The Respondent notes that Powells Creek belongs to Sydney Water. 1. the development is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding: The development is not likely to result in unsuitable social and economic costs to the community as a result of flooding in circumstances where the proposed development has been designed in accordance with NSW Floodplain Development Manual and Council Interim Flood Prone Land Policy and all flooding consequences addressed. 1. On the basis of the advice of the Council, and the applicant's Flood Assessment Report prepared by C&M Consulting Engineers rev A report no. R01866-F dated August 2017, I am satisfied in regard to the required matters at cl 6.3. 2. Clause 6.4 requires the consent authority to be satisfied that essential services are available to the Site. I am satisfied given the advice of the parties that the Site is located within a well serviced area and features existing water and electricity connections and access to Council's stormwater drainage system. 3. Clause 6.9 applies to the Site and provides that development consent must not be granted unless the consent authority is satisfied that the development will contribute to – "(a) the general mix of residential and non residential land uses in the area, and (b) the vertical and horizontal integration of land uses in the area". 1. I accept the advice of the parties that the provision of two retail tenancies on ground level with a combined gross floor area of 186.67 sqm and three 'live-work' suites would contribute to the general mix of residential and non residential land uses in the area. I also accept their advice that the accommodation of land uses both within the towers and throughout the ground level plane will achieve the vertical integration of land uses, whilst the provision of a vehicular shared zone, communal open space and entry courtyard will encourage pedestrian accessibility through the site, achieving horizontal integration with adjacent land uses. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA2019/143 for site preparation works including demolition, excavation and remediation, the construction of a mixed use development comprising of 2 residential towers (Building A at 25 storeys and Building B at 26 storeys) connected by an 8 storey podium accommodating rooftop communal open space containing a total of 360 apartments, 2 ground floor retail premises and a further rooftop terrace to Building A situated over 4 levels of basement parking containing 381 car parking spaces, with associated ground floor communal open space and entry court yard, construction of an extension to Nipper Street and landscaping works on the land at 11-13 and 15-17 Columbia Lane, Homebush is approved subject to the conditions of consent annexed hereto and marked "A". .…………………………….. P Walsh Commissioner of the Court Annexure A (371527, pdf) Architectural Plans (24295741, pdf) Landscape Report (11727066, 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: 29 January 2021