Land and Environment Court New South Wales Medium Neutral Citation: Beasley v Shoalhaven City Council [2021] NSWLEC 1249 Hearing dates: 31 March 2021 Date of orders: 14 May 2021 Decision date: 14 May 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: 1) The applicant is granted leave to amend the development application and rely on: a) the drawings and documents referred to in condition 1 of Annexure "A" to this agreement; b) 'Submission under clause 4.6 of Shoalhaven LEP 2014' (19 March 2021) prepared by Cowman Stoddart Pty Ltd; c) 'Clause 4.6 request (clause 4.2H)' (19 April 2021) prepared by Mills Oakley; and d) Amended class 1 application prepared on 9 April 2021. 2) The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3) The Applicant's written request under clause 4.6 of the Shoalhaven Local Environmental Plan 2014 (the LEP) seeking a variation of the development control for height of buildings set out in clause 4.3(2A) of the LEP is upheld. 4) The Applicant's written request under clause 4.6 of the LEP seeking a contravention of the development standard for the subdivision of land used for the purposes of tourist and visitor accommodation set out under clause 4.2H of the LEP is upheld. 5) The appeal is upheld. 6) Development Application DA19/2160 for demolition of existing structures and construction of a tourist development with: a) ground floor parking; b) first floor with reception, function space, restaurant and bar; c) second floor containing 'four-star' rooms; and d) subdivision is determined by the grant of consent subject to the conditions set out in Annexure "A" to this agreement. 7) The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – mixed use development with food and drink premises and tourist and visitor accommodation – non-compliance with height and subdivision development standards – subdivision into two lots to enable pedestrian access – conciliation conference – agreement between the parties – orders Legislation Cited: Community Land Development Act 1989 Environmental Planning and Assessment Act 1979, ss 1.3, 4.14, 4.15, 4.16, 4.46, 8.7 Environmental Planning and Assessment Regulation 2000, cl 49 Land and Environment Court Act 1979, s 34 Shoalhaven Local Environmental Plan 2014, cll 2.3, 4.2H, 4.3, 4.6, 7.1, 7.3, 7.6 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Coastal Management) 2018, cll 1, 13, 14, 15 Strata Schemes Development Act 2015 Texts Cited: Shoalhaven Development Control Plan 2014 Category: Principal judgment Parties: Chris Beasley (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) J Corridini-Bird (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/329558 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 19/2160 by Shoalhaven City Council (hereafter the Council), which as amended, seeks demolition of existing structures, subdivision into two lots, and construction of a three level building providing food and drink premises, and tourist/visitor accommodation with a rooftop terrace, basement parking and landscaping on Lot 47 DP 1051945, also known as 1 Princess Avenue South, Burrill Lake (hereafter the site). 2. The amended Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to the parties' request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 31 March 2021, without an onsite view and remotely by Microsoft Teams. Further to the written submissions, the Court heard directly from two resident objectors whom raised issues relating to: overdevelopment; character; bulk and scale; height; amenity; parking; noise; and foreshore access. 4. The applicant seeks leave to amend the DA to allow for a two-lot subdivision, with one parcel being 2409.534m2 (containing the proposed development), and the other parcel being 1.973m2 (to be dedicated to Council for the public road infrastructure). The Court hereby grants leave to amend the DA, without opposition of the respondent. 5. Based on the amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 19/2160 with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to the requirements in ss 4.14 and 4.15(1) to grant consent to DA 19/2160, with conditions, as described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration as consistency with the: Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coast); Shoalhaven Local Environmental Plan 2014 (SLEP); as well as the Shoalhaven Development Control Plan 2014 (SDCP). 8. The proposed development is identified as an integrated development, pursuant to s 4.46 of the EPA Act. The relevant concurrence authorities have responded to the application with general terms of agreement, which are described in the conditions of consent, and specifically address where authorisation/approvals/permits are required. 9. The subject site is mapped by Council as containing a 'buffer' to bushfire prone land. The application relies on a 'Bushfire Hazard Assessment Report'. The parties agree that the proposed development conforms to the specifications and requirements of the 'Planning for Bush Fire Protection' prepared by the NSW Rural Fire Service (RFS), and which satisfies the requirements of s 4.14 of the EPA Act. 10. Consistent with cl 49 of the EPA Reg, the application is made with the consent of the owners of the site, Council and Transport for NSW, whom are owners of the land associated with the connecting footpaths located beyond the site and relied on by the application. The parties agree that the relevant requirements of the EPA Reg are satisfied. 11. The parties agree that the proposed development complies with the relevant provisions of SEPP 55. The Council has assessed that the site is currently used for tourist accommodation purposes, which is a land use that has been in continuous existence for many years, and therefore the site is deemed suitable for the proposed development. The parties agree that the requirements of cl 7 of the SEPP 55 are satisfied. 12. The site is identified as a "coastal environment area", "coastal use area", and partly within the "proximity area for coastal wetlands" on the 'Coastal Wetlands and Littoral Rainforests Area Map', described in the SEPP Coast. The parties agree that the proposed development has been designed, sited and will be managed, by conditions of consent, to avoid any adverse impact to the associated coastal areas and public access. The parties are satisfied that the requirements of cll 14 and 15 of the SEPP Coast are satisfied. 13. The proposed development on the site is located within the SP3 Tourist Residential zone, as identified in cl 2.3 of the SLEP. The proposed development is permissible with consent and the parties agree satisfies the objectives of this zone. 14. The parties agree that the relevant provisions of the SLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. However, the parties accept that the proposed development exceeds the numeric requirements of cl 4.3 (height standard) and general requirements of cl 4.2H (subdivision for tourist/visitor accommodation), of the SLEP. All other relevant development standards are satisfied, specifically as described below. 15. It is accepted by the parties that cl 4.6 written requests for variation of the height and the relevant subdivision standards is required to be considered by the Court to grant consent to the DA, pursuant to cl 4.6 of the SLEP. 16. The written request for (height) variation, submitted with the application, explains that a small portion of the proposed development exceeds the relevant height standard, being 11m, as specified in cl 4.3 of the SLEP. 17. The cl 4.6 (height) written request explains that the exceedance in the height standards relates to a rooftop terrace, and does not result in a development that is out of character with the local area or perceived adversely from the streetscape. The proposed development is constrained by flood levels and has responded by raising the (habitable) floor levels to elevate habitable space. 18. According to the height written request, there are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the development standard for the proposed development. The proposed development is not inconsistent with the zone objectives or the relevant development standards. The portions of the non-compliant building forms are not readily discernible in the context of the site or are out of character. 19. The proposed development satisfies the objectives of the zone and the height development standard. As the proposed development is in character with the local area, results in no adverse amenity impacts and satisfies the relevant standard objectives, compliance with the development standards would be both unreasonable and unnecessary. 20. The written request considers that a variation of the height development standard described in cl 4.3 of the SLEP is therefore reasonable, and flexibility of the standard is justified. 21. Having reviewed the (cl 4.6) written request for height variation, I agree that the written request does address the requirements of cl 4.6(3) of the SLEP by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the SLEP is satisfied to vary the height development standard, as requested. 22. The proposed development, as described to the Court, is consistent with the objectives of the zone (cl 2.3 for SP3 zone) and the height (cl 4.3) standard, as established in the SLEP. 23. The proposed non-compliance of the height standard does not result in adverse impact to the residents of the proposed development, adjoining properties or the character of the local area. Height standard variation for the proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii) of the SLEP. 24. I accept the cl 4.6 written explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance. Therefore, variation of the height development standard is not inconsistent with cll 4.6(4)(b) or (5) of the SLEP. 25. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed and that a variation in the height development standard, as proposed by this application, should be granted. 26. The (cl 4.6) written request seeking variation of the subdivision standard, cl 4.2H of the SLEP, explains that although the proposed development does not seek subdivision under either the Community Land Development Act 1989 or the Strata Schemes Development Act 2015, the proposed subdivision is reasonable, to allow functioning of the site and serves a public benefit. Subdivision for the proposed tourist and visitor accommodation development is not otherwise excluded by the SLEP. 27. The proposed development seeks to construct a public pedestrian path along its frontage, and therefore it is required to subdivide the site into two lots, being: one lot of 2409.534m2, containing the proposed development; and one lot of 1.973m2, to be dedicated to Council as a public road (for a pedestrian path). 28. The cl 4.6 (subdivision) written request explains that the proposed subdivision relates solely to a small areal encroachment onto the site required for the proposed public footpath. 29. According to the (subdivision) written request, there are no adverse impacts as a result of the non-compliance with the development standard for the proposed subdivision. The proposed subdivision is not inconsistent with the zone objectives or other relevant development standards. The portion of the subdivided lot to contribute to the new footpath, permits a path of reasonable width to allow safe passing and access, and is designed so as not to be readily discernible in the context of the area. 30. The proposed development satisfies the objectives of the zone and generally other relevant objectives, recognising that cl 4.2H of the SLEP does not itself have objectives to be addressed. As the proposed development is in character with the local area, results in no adverse amenity impacts and satisfies the relevant standard objectives, compliance with the (cl 4.2H) development standard would be both unreasonable and unnecessary. 31. The written request considers that a variation of the subdivision development standard for this tourist and visitor accommodation development, pursuant to cl 4.2H of the SLEP, is reasonable, and flexibility of the standard is justified. 32. Having reviewed the (cl 4.6) written request, I agree that the written request seeking variation of the cl 4.2H of the SLEP satisfactorily describes the sufficient environmental planning grounds to justify a variation, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the SLEP is satisfied to vary the cl 4.2H, as requested. 33. The proposed development, as described to the Court, is consistent with the objectives of the zone (cl 2.3 for SP3 zone) and the general, relevant objectives in the SLEP and including in cl 1.3 of the EPA Act. 34. The proposed subdivision does not result in adverse impact to the residents of the proposed development, adjoining properties or the character of the local area. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii) of the SLEP. 35. I accept the cl 4.6 written explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance. Therefore, variation of cl 4.2H of the SLEP is not inconsistent with cll 4.6(4)(b) or (5) of the SLEP. 36. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed and that a variation in the subdivision development standard, as established in cl 4.2H, should be granted. 37. The parties agree that the site is identified as being affected by Class 3 and 5 acid sulfate soils on the 'Acid Sulfate Soils Map', pursuant to cl 7.1 of the SLEP. In addition, the proposed development seeks to disturb more than one tonne of soil more at a depth of more than 1 metre below the natural ground surface. The parties agree that the 'Acid Sulfate Soils Management Plan' satisfactorily supports the development application and the requirement of cl 7.1(3). 38. The site is identified as being at or below the flood planning level, pursuant to cl 7.3 of the SLEP. To satisfy the requirements of cl 7.3, the parties agree that the application is supported by a 'Flood Impact Statement' and designed to mitigate any flood impacts on the site and off the site. The amended plans and conditions of consent that the DA relies on support compliance with cl 7.3. 39. The site is located adjacent to a Category 1 watercourse, and therefore cl 7.6 of SLEP is relevant for consideration. The parties agree that the application is supported by relevant reports, and is designed, sited and will be managed by conditions of consent to avoid any significant adverse environmental impact, to satisfy cl 7.6. 40. The parties agree that the proposed development requires 86 parking spaces onsite, which is deficient, pursuant to the parking schedule in Chapter G21 of the SDCP. They explain however, that the amended plans show traffic and pedestrian safety is assured by the proposed development, and that based on sufficiency of on street parking, a total 53 spaces as proposed by the development is acceptable. Therefore, the relevant requirements relating to traffic and parking in the SDCP are accepted as satisfied. 41. The parties agree that the DA was publicly notified in accordance with the SDCP. During the notification period for this DA under appeal, three submissions in objection were received by Council. The submissions of residents have been considered to the satisfaction of the parties. 42. The parties advise the Court that the amended plans and documents that support the DA have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council, issues by residents, and all jurisdictional requirements are resolved to the satisfaction of the parties. 43. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and which they are satisfied resolves the contentions, as raised. 44. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 19/2160 should be granted with conditions, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act. 45. 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. 46. The Court orders that: 1. The applicant is granted leave to amend the development application and rely on: 1. the drawings and documents referred to in condition 1 of Annexure "A" to this agreement; 2. 'Submission under clause 4.6 of Shoalhaven LEP 2014' (19 March 2021) prepared by Cowman Stoddart Pty Ltd; 3. 'Clause 4.6 request (clause 4.2H)' (19 April 2021) prepared by Mills Oakley; and 4. Amended class 1 application prepared on 9 April 2021. 1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The Applicant's written request under clause 4.6 of the Shoalhaven Local Environmental Plan 2014 (the LEP) seeking a variation of the development control for height of buildings set out in clause 4.3(2A) of the LEP is upheld. 3. The Applicant's written request under clause 4.6 of the LEP seeking a contravention of the development standard for the subdivision of land used for the purposes of tourist and visitor accommodation set out under clause 4.2H of the LEP is upheld. 4. The appeal is upheld. 5. Development Application DA19/2160 for demolition of existing structures and construction of a tourist development with: 1. ground floor parking; 2. first floor with reception, function space, restaurant and bar; 3. second floor containing 'four-star' rooms; and 4. subdivision is determined by the grant of consent subject to the conditions set out in Annexure "A" to this agreement. 1. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. ………………………… Sarah Bish Commissioner of the Court Annexure A (381793, pdf) Plans_1 (11576943, pdf) Plans_2 (4387817, pdf) Plans_3 (477309, pdf) Plans_4 (81510, 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: 14 May 2021