Land and Environment Court New South Wales Medium Neutral Citation: Clusterduck Pty Ltd as Trustee for the Empty Biscuit Tin Unit Trust (ACN 629 244 560) v North Sydney Council [2021] NSWLEC 1718 Hearing dates: Conciliation conference on 19 November 2021 Date of orders: 24 November 2021 Decision date: 24 November 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is to pay the Respondents costs thrown away as a result of the amendments 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 written request made pursuant to cl 4.6 of North Sydney Local Environmental Plan 2013 to justify the contravention of the height of buildings development standard contained in cl 4.3 of NSLEP prepared by BBC Consulting Planners and dated October 2021 is upheld. (3) The appeal is upheld. (4) Development application DA-111/21 for demolition of existing structures and construction of a boarding house comprising of 31 rooms at 233 – 237 Military Road, Cremorne is approved subject to the conditions at annexure "A". Catchwords: APPEAL – development appeal – boarding house – conciliation conference – agreement reached – breach of height development standard – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 4.15, 4.16 Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013, cll 4.3, 4.6 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Draft State Environmental Planning Policy (Housing) 2021 North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Clusterduck Pty Ltd as Trustee for the Empty Biscuit Tin Unit Trust (ACN 629 244 560) (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/199168 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a four storey boarding house at 233-237 Military Road, Cremorne. The development application was lodged with North Sydney Council on 28 April 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 was held on 19 November 2021. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement followed the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended plans reduce the number of boarding rooms proposed when compared to the original development application, reduce the building site coverage, and increase the setbacks to Cranbrook Lane and along the eastern and western boundaries. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement, which was filed on 19 November 2021, is supported by an agreed jurisdictional note provided by the parties by email on 18 November 2021. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The land to which the development application relates is situated within Zone R4 High Density Residential pursuant to the provisions of the North Sydney Local Environmental Plan 2013 (NSLEP 2013), and development for the purpose of boarding houses is permissible in the zone. * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 12m, pursuant to cl 4.3 of the NSLEP 2013. The proposed maximum height of 12.8m represents a contravention of 0.8m above the numerical standard. The contravention is confined to a minor part of the parapet detailing on the front elevation, the lift over run, and the roof light. I am satisfied that the written request dated October 2021, lodged pursuant to cl 4.6 of the NSLEP 2013, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for a lift to be provided to give equitable access to the occupants, the lift overrun is sited in a location that does not cause adverse amenity impacts, the breach allows the parapet detailing to the western elevation which ensures that the flat, compact gravel roof finish is maintained in perpetuity, and the design factors for the development has resulted in the parapet detailing, skylight and lift overrun exceeding the specified height standard. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. At cl 30, consent cannot be granted unless certain requirements are met. Based on the architectural plans, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development. * Clause 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area". The setbacks and design of the building is consistent with the desired future character expressed in the Murdoch Neighbourhood Character Statement in Section 5.5.2 of Part C of the North Sydney Development Control Plan 2013, and with the diverse mix of commercial, residential and community uses that are already in the vicinity of the site. * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. Based on the historical data on the previous use of the site, the parties agree, and I accept, that the risk of contamination is low and manageable given the extent of the excavations and works proposed. * The site has frontage to Military Road, which is a classified road, and cll 101 and 102 of State Environmental Planning Policy (Infrastructure) 2007 apply. In accordance with cl 101, I am satisfied that vehicular access is provided by a road other than a classified road, as access is provided from Cranbrook Avenue/Lane, and that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of cl 101(2)(c) and cl 102(3), the proposed development has been designed to prevent or reduce the impacts associated with road traffic noise, and will be carried out in accordance with the recommendations in the Acoustic Report that will ensure a suitable degree of amenity for occupants of the boarding house, including compliance with the LAeq levels in cl 102(3). * The Court is required to take into consideration the provisions of the Draft State Environmental Planning Policy (Housing) 2021, as it is draft environmental planning instrument. The draft instrument contains a savings provision that would, if the instrument is commenced, allow the proposed development the subject of the appeal to be considered as if the draft instrument had not commenced. As such, and in circumstances where boarding houses are a permissible use in the zone in which the site is located, the draft instrument can be given limited weight. 1. I note also that cl 29 of the SEPP ARH sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for landscape area, solar access, private open space and accommodation size. Accordingly, consent cannot be refused on any of those grounds. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court notes that: 1. North Sydney Council as the relevant consent authority has, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 consented to the amendments to development application DA 111/21 as described in condition 1 of the conditions at annexure "A". 2. The Applicant/Respondent uploaded the amended application on the NSW planning portal on 18 November 2021; 3. The Applicant filed the amended application with the Court on 18 November 2021. 1. The Court orders that: 1. The Applicant is to pay the Respondents costs thrown away as a result of the amendments 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 written request made pursuant to cl 4.6 of North Sydney Local Environmental Plan 2013 to justify the contravention of the height of buildings development standard contained in cl 4.3 of NSLEP prepared by BBC Consulting Planners and dated October 2021 is upheld. 3. The appeal is upheld. 4. Development application DA-111/21 for demolition of existing structures and construction of a boarding house comprising of 31 rooms at 233 – 237 Military Road, Cremorne is approved subject to the conditions at annexure "A". ………………………. J Gray Commissioner of the Court Annexure A (578790, 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: 24 November 2021