Land and Environment Court New South Wales Medium Neutral Citation: Roche Group Pty Limited v Mid-Coast Council [2021] NSWLEC 1567 Hearing dates: Conciliation conference on 14 July, 18 August and 3 September 2021 Date of orders: 6 October 2021 Decision date: 06 October 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amended application as agreed or assessed. (2) The appeal is upheld. (3) Development Consent is granted to DA 460/2019 for development of a residential flat building with one level of basement car parking at 39 Josephine Boulevard, Harrington NSW 2427, subject to conditions contained in Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Greater Taree Local Environmental Plan 2010, cll 4.3, 4.4, 4.6, 5.21, 7.1, 7.3 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 4 Category: Principal judgment Parties: Roche Group Pty Limited (Applicant) Mid-Coast Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) T Pickup (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Local Government Legal (Respondent) File Number(s): 2021/55480 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of a development application DA 460/2019 seeking consent for the development of a residential flat building with one level of basement car parking (the Proposed Development) at 39 Josephine Boulevard, Harrington NSW 2427 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 July, 18 August and 3 September 2021. I have presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and an agreement pursuant to s 34 has been filed by the parties on 14 September 2021. This decision involved upholding the appeal and granting development consent to the development application subject to conditions. 4. 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. 5. The parties identified the jurisdictional prerequisites of relevance in these proceedings to include cl 4.6 of the Greater Taree Local Environmental Plan 2010 (GTLEP) requiring a written request to justify the contravention of a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in a written jurisdictional note and I summarise how the parties explain how each jurisdictional prerequisite has been satisfied below. 6. Under the GTLEP the site is zoned part R1 General Residential and part RE2 Private Recreation and 'residential accommodation' is permissible within the R1 zone, the proposed development does not extend into the RE2 zone. The site has a total area of 4,494.47m2. 7. The site is subject to two maximum height controls provided under the Height of Buildings Map in the GTLEP, being 8.5m for Lot 4122 and 14.5m for Lot 49. The proposed development is above the height control by 1.36m in Lot 4122 and by 2.4m in Lot 49. A Clause 4.6 Variation Request prepared by Willowtree Planning Pty Ltd dated August 2021 is relied on by the applicant seeking a variation to cl 4.3 of the GTLEP. The request is founded on the reasons set out on pp 12 – 23 of the Clause 4.6 Request, namely that: 1. The developmental and environmental constraints affecting the depths at which the building can be positioned demonstrate a direct correlation and requirement to attain the heights proposed; 2. There are sufficient environmental planning grounds to justify contravening the Development Standard; 3. The proposed height will not create significant visual or overshadowing impacts for surrounding sensitive land users and strict adherence to the Development Standard would have a negligible effect upon desired future character for the site and the locality. 1. The parties agree that compliance with the development standard is unreasonable or unnecessary for the reasons set out in the Clause 4.6 Request at pp 16 – 17, there are sufficient planning grounds to justify contravening the development standard for the reasons set out in pp 17 and 18 of the Clause 4.6 Request, and the development is in the public interest and is consistent with the zone objectives as set out at pp 11 - 15 of the Clause 4.6 Request. 2. Lot 4122 of the site is subject to a floor space ratio ('FSR') control of 0.6:1. Lot 49 has no FSR control applicable to the site. With respect to Lot 4122 only, the proposal has an FSR of 0.55:1, complying with cl 4.4 of the GTLEP. 3. The Site is flood prone land and subject to the provisions of cl 5.21 – Flood Planning of the GTLEP. In response to the requirements in cl 5.21: 1. A letter responding to flood planning controls in the GTLEP has been prepared by the Applicant's flood expert dated 28 July 2021; 2. The proposed development has been designed to comply with the flood planning level for the site, such that all habitable floors are at a minimum level of 5.4m AHD, which is 1.9m higher than FPL3; and 3. The proposed development as depicted in Amended Architectural plans is compliant with the flood planning levels. 1. The Site is mapped as having Class 3 Acid Sulfate Soils pursuant to cl 7.1 of the GTLEP. In response to the requirements in cl 7.1: 1. investigations were undertaken to ascertain the possibility of encountering acid sulfate soils as documented in the Groundwater and Acid Sulfate Soil Assessment prepared by Douglas Partners dated February 2019 submitted as part of the Development Application. The findings of this report indicate that the site has a low risk of encountering acid sulfate soils; 2. an Acid Sulfate Soils Management Plan was prepared by the Applicant and submitted as part of the Development Application; and 3. the proposed level and height of the building has been designed so as to avoid contact with acid sulfate soils where reasonable and practicable to do so per the recommendations. 1. In relation to satisfaction of the requirements pursuant to cl 7.3 - Earthworks, the Application as submitted has considered earthworks across the site, concluding that the proposal would not have a detrimental effect on drainage patterns and soil stability in the locality. A letter addressing these matters has been prepared by Douglas Partners Pty Ltd dated 3 August 2021. 2. In relation to satisfaction of the requirements in the State Environmental Planning Policy (Coastal Management) 2018 ('Coastal Management SEPP'), a letter addressing matters raised under the Coastal Management SEPP has been prepared by BMT Commercial Australia dated 10 August 2021. 3. In relation to satisfaction of the requirements in the State Environmental Planning Policy No 55 – Remediation of Land, the historical use of the site is residential in nature and accordingly there are no reasonable grounds to suspect contamination. 4. As the proposed development constitutes a residential flat building that is three or more stories in height, the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) will apply, pursuant to cl 4. In response to the requirements under the SEPP 65, an updated Design Verification Statement has been prepared by BKA Architecture dated 17 August 2021 which concludes that development satisfies all relevant considerations under the SEPP 65. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act and I adopt the reasons given by the parties. 6. In relation to the cl 4.6 written request, the Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.3 of the GTLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the GTLEP and that the proposed development is in the public interest because it is consistent with the objectives of the Height of Building development standard and the objectives for development within the R1 General Residential zone in which the development is proposed to be carried out. 7. 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. 8. The Court notes: 1. The Court notes that Mid-Coast Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA 460/2019 per the documentation listed at [19(4)]. 2. The Court notes that the amended development application was lodged on the planning portal on 9 September 2021. 3. The Court notes that the amended development application was filed with the Court on 2 September 2021 and the Final BASIX certificate was filed with the Court on 14 September 2021. 4. By consent, the development application is amended per the following documentation: Plan Name Drawing number Revision Date Prepared by Architectural plans Cover Page A000 B 26/08/2021 BKA Architecture Location Plan A001 C 26/08/2021 BKA Architecture Site Plan A002 C 26/08/2021 BKA Architecture Basement Plan A100 B 26/08/2021 BKA Architecture Ground Level Plan A101 D 26/08/2021 BKA Architecture Level 01 Plan A102 C 26/08/2021 BKA Architecture Level 02 Plan A103 C 26/08/2021 BKA Architecture Level 03 Plan A104 C 26/08/2021 BKA Architecture Roof Plan A105 C 26/08/2021 BKA Architecture Elevations – Sheet 01 A201 C 26/08/2021 BKA Architecture Elevations – Sheet 02 A202 C 26/08/2021 BKA Architecture Sections – Sheet 01 A301 C 26/08/2021 BKA Architecture Sections – Sheet 02 A302 A 26/08/2021 BKA Architecture Typical Unit Layouts – Sheet 01 A401 A 26/08/2021 BKA Architecture Typical Unit Layouts – Sheet 02 A401 A 26/08/2021 BKA Architecture Section details A500 A 26/08/2021 BKA Architecture Solar Access Diagrams – Sheet 01 A700 C 26/08/2021 BKA Architecture Solar Access Diagram – Sheet 02 A701 C 26/08/2021 BKA Architecture Height Plane Diagram A710 B 26/08/2021 BKA Architecture Cross Ventilation Diagram A720 B 26/08/2021 BKA Architecture GFA Diagram A750 C 26/08/2021 BKA Architecture Area Calculation Diagrams A751 A 26/08/2021 BKA Architecture Shadow diagrams – Sheet 01 A760 A 26/08/2021 BKA Architecture Shadow diagrams – Sheet 02 A760 A 26/08/2021 BKA Architecture Materials and Finishes A900 B 26/08/2021 BKA Architecture Perspective Image A950 B 26/08/2021 BKA Architecture Landscape Plans Cover sheet - H August 2021 Arcadia Landscape Architecture Regional Context - H August 2021 Arcadia Landscape Architecture Site Context and Analysis - H August 2021 Arcadia Landscape Architecture Design Principles - H August 2021 Arcadia Landscape Architecture Masterplan - H August 2021 Arcadia Landscape Architecture Landscape Sections - H August 2021 Arcadia Landscape Architecture Landscape Elevations - H August 2021 Arcadia Landscape Architecture Planting Scheme - H August 2021 Arcadia Landscape Architecture Materials Scheme - H August 2021 Arcadia Landscape Architecture Planting Plans and details sheets 101, 102, 103, 500 - E August 2021 Arcadia Landscape Architecture Reports Schedule of amendments prepared by BKA Architecture dated 26 August 2021 Amended SEPP 65 Design Verification Statement prepared by BKA Architecture dated 12 August 2021 Amended Statement of Environmental Effects prepared by Willow Tree Planning dated 4 August 2021 Amended Clause 4.6 variation to height request prepared by Willow Tree Planning dated 27 August 2021 Letter addressing flood planning matters in LEP prepared by GCA Engineering Solutions dated 28 July 2021 Letter addressing earthworks prepared by Douglas Partners Pty Ltd dated 3 August 2021 Letter addressing Coastal Management SEPP prepared by BMT Commercial Australia Pty Ltd dated 10 August 2021 BASIX BASIX certificate No. 953894M_03 dated 26 August 2021 prepared by ESD Synergy Pty Ltd 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amended application as agreed or assessed. 2. The appeal is upheld. 3. Development Consent is granted to DA 460/2019 for development of a residential flat building with one level of basement car parking at 39 Josephine Boulevard, Harrington NSW 2427, subject to conditions contained in Annexure 'A'. ………………………. E Espinosa Commissioner of the Court Annexure A (253246, pdf) Architectural Plans (22421788, 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: 06 October 2021