Land and Environment Court New South Wales Medium Neutral Citation: Kansanto Pty Ltd v Fairfield City Council [2022] NSWLEC 1256 Hearing dates: Conciliation conference on 12 May 2022 Date of orders: 23 May 2022 Decision date: 23 May 2022 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development application No. DA292.1/2021 (as amended on 6 May 2022) for the demolition of existing structures and the erection of three, four storey residential flat buildings containing a total of 39 units over a common level of basement parking with 49 car parking spaces on the land described as Lot D Section 35 Deposited Plan 20450 (known as 147 Polding Street, Fairfield Heights), Lot I Section 35 DP 20450 (known as 1 Bodalla Street, Fairfield Heights) and Lot H Section 35 DP 20450 (known as 3 Bodalla Street, Fairfield Heights) is determined by the grant of development consent subject to the conditions in Annexure A. (3) The applicant is to pay the respondent's costs thrown away, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. Catchwords: APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 49, 50, 55, cl 2A(1) of Sch 1 Environmental Planning and Assessment Regulation 2021, Sch 6 Pt 1 cl 3 Fairfield Local Environmental Plan 2013, cll 2.1, 2.3, 2.7, 4.3, 4.4, 6.9 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65 -Design Quality of Residential Apartment Development, cll 28(2), 30(2) Category: Principal judgment Parties: Kansanto Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/262330 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application (DA) by Kansanto Pty Ltd (Applicant) for the demolition of existing structures and the erection of three, four-storey residential flat buildings containing a total of 39 units over a common level of car parking with 49 car parking spaces (Proposed Development). 2. The Proposed Development will be carried out on the land described as Lot D Section 35 DP 20450, known as 147 Polding St Fairfield Heights, Lot H Section 35 DP 20450, known as 3 Bodalla St Fairfield Heights and Lot I Section 35 DP 20450, known as 1 Bodalla St Fairfield Heights (Site). 3. The Site is located on the southern side of Polding St and adjoins a public laneway to the east. The Site is located immediately west of the Fairfield Heights town centre. It is an irregular shaped allotment with a frontage of 29.134 m to Polding St, a secondary frontage of 29.3 m to Bodalla St to the south and a side boundary of 100 m to the laneway to the east of the Site. The Site has a total area of 2,876.9 m2. 4. The DA was made to the Council on 4 August 2021. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 14 September 2021 the Applicant appealed to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 5. The hearing commenced on site on 12 May 2022. The Court heard oral evidence from Mr Angelo and Mrs Lyn Panuccio who own several nearby properties. They expressed concerns about the on-street car parking in the area and I have set out those concerns in more detail at par [13(5)] below. The Court also viewed the Site and walked around the block bounded by Bodalla, Polding and Ann Streets and the unnamed lane which adjoins the Site. 6. Following the on-site component of the hearing, the parties requested that the Court arrange a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 12 May 2022. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to each of them. The signed agreement was filed on 12 May 2022 and is supported by a Jurisdictional Statement provided by the parties on the same date. 7. The agreement involves the Court approving the DA, as amended with the agreement of the Council as consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to conditions of consent. The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The DA was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the DA. 8. As originally lodged, the DA sought development consent for the demolition of all structures, removal of trees and vegetation, and construction of three x 4 storey residential flat buildings containing: 1. 44 units comprising 13 x 1 bedroom units, 21 x 2 bedroom units and 10 x 3 bedroom units; 2. Basement car park for 55 spaces (44 residential and 11 visitor spaces) including 6 accessible spaces; 3. Bicycle parking for 30 bicycles; and 4. Ground level communal open space. 1. The DA as amended on 6 May 2022 (Amended DA) reduces the total number of residential units, changes the mix of 1, 2 and 3 bedroom units and reduces the parking available for both cars and bicycles. The Amended DA seeks consent for the demolition of all structures, removal of trees and vegetation, and construction of three x 4 storey residential flat buildings containing: 1. 39 units comprising 8 x 1 bedroom units, 20 x 2 bedroom units and 11 x 3 bedroom units; 2. Basement car park containing 49 spaces (39 residential and 10 visitor spaces) including 6 accessible spaces; 3. Bicycle parking for 20 bicycles; and 4. Ground level communal open space having an area of 725.7m2. 1. The Proposed Development for which the Amended DA seeks development consent will increase the setback of buildings from the laneway, provide a footpath along the frontage to the laneway, improve ground level circulation and communal open spaces, reconfigure some units to provide additional north facing terraces, internalise the garbage room and incorporate the driveway into the built form. 2. The Council has informed the Court that the Amended DA satisfactorily resolves all of its contentions. 3. Under 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. 4. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons: General 1. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10, of the EPA Act. 2. The DA has been made with the consent of the owner of the Site in accordance with cl 49(1)(b) of the EPA Regulation. 3. Clause 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The proposed development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. A BASIX Certificate (Certificate Number 1203203M_02) prepared by Sustainable Thermal Solutions dated 27 April 2022 accompanies the Amended DA. 4. The DA was notified by the Council for a period of 14 days between 13 August 2021 and 27 August 2021. The Council received one submission in relation to the DA. The Amended DA was also notified for a period of 14 days between 14 April and 28 April 2022. Three written submissions were received by the Council. The written submissions raise the following issues: 1. Excessive height, bulk and scale; 2. Noise from future residents; 3. Unsatisfactory car parking. 1. As noted above, at the commencement of the hearing, oral evidence was heard from Mr Angelo Panuccio and Mrs Lyn Panuccio. They both expressed concerns about the existing car parking situation in the local area. Their concerns included that the 2 hour parking limit is not enforced, that cars regularly park across driveways blocking access for residents and that speed bumps are required in Bodalla St to slow cars down. They point to the existing medical centre in Polding St as generating a large volume of traffic, much of which they say park on the street rather than in the medical centre's on-site parking area. They are concerned that the existing unsatisfactory situation will be made worse if insufficient on-site parking is not provided in the Proposed Development. 2. I am satisfied that the parties' agreement adequately takes into consideration the objections raised by the local residents. In this regard I note that: 1. the car parking proposed by the Amended DA complies with the relevant requirements of section 7.6.1 of the Fairfield Citywide Development Control Plan 2013 and it would be unreasonable to require more off-street car parking than required by that Plan; 2. to the extent that the objectors' concerns relate to car parking associated with the existing medical centre situated on part of the Site, the Amended DA proposes the demolition of the medical centre as a part of the Proposed Development; 3. the Proposed Development complies with the relevant height and floor space ratio controls and its height, bulk and scale are of a scale that is contemplated by the planning controls for the Site; 4. in relation to noise, the Applicant has provided an acoustic assessment prepared by PKA Consulting dated 30 June 2021 which concludes that, based on the noise survey conducted by and calculations performed by PKA, "the proposed development will comply with the Noise Policy for Industry (2017) if the recommendations in the assessment are implemented". An addendum to the report dated 27 April 2022 considers the Amended DA and makes some recommendations to address the emission of offensive noise from the Proposed Development. Conditions have been included in the proposed consent conditions to implement the recommendations in the acoustic assessment and addendum. Site contamination 1. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. A Preliminary Site Investigation prepared by SLR dated January 2022 forms part of the DA. In addition, further information was submitted by SLR under cover of its memoranda dated 8 April 2022, 29 April 2022 and 3 May 2022. These documents indicate that the Site is subject to asbestos contamination. A Remediation Action Plan is included in the memorandum prepared by SLR dated 3 May 2022, and its requirements have been incorporated into the proposed consent conditions. I am satisfied that that the Site will be suitable for its proposed residential use after remediation and that the proposed conditions of consent will ensure that the Site is remediated before it is used for residential purposes. Design Quality 1. The proposed development is a residential apartment development. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) requires consideration and demonstration of the design quality of the development. There are three components to this: * Clause 28(2) of SEPP 65 requires: In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration)— (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. * Clause 30(2) of SEPP 65 requires: Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to— (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. * Clause 50(1A) of the EPA Regulation provides that a development application that relates to residential apartment development must be accompanied by a statement by a qualified designer. The statement by the qualified designer must: (a) verify that he or she designed, or directed the design, of the development, and (b) provide an explanation that verifies how the development— (i) addresses how the design quality principles are achieved, and (ii) demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved." (cl 50(1AB) of the EPA Regulation). 1. The DA was not referred to a design review panel. The Applicant has provided the design verification statement required by cl 50(1A) of the EPA Regulation. The design verification statement was prepared by Christopher Jordan, a registered architect, and: 1. verifies that he directed the design of the Proposed Development; 2. shows how the design quality principles are achieved by the Proposed Development; and 3. demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. 1. I have considered the DA, including the amended architectural drawings and the Design Verification Statement. I have taken into consideration the design quality of the Proposed Development, when evaluated in accordance with the design quality principles, and the Apartment Design Guide (as required by cl 28(2)). 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 (as required by cl 30(2)). Fairfield Local Environmental Plan 2013 1. The Site is within Zone R4 High Density Residential under the Fairfield Local Environmental Plan 2013 (LEP). The Proposed Development is permitted with development consent on land within that zone. 2. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of R4 High Density Residential are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise opportunities for increased development on all land by encouraging site amalgamations. 1. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with those objectives. It will provide a variety of one, two and three bedroom apartments in three residential apartment buildings and involves the amalgamation of three existing allotments. 2. The Proposed Development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (cl 4.4). The height of the proposed development is approximately 12.6 metres above ground floor level which is less than the applicable maximum building height of 13 metres. The floor space ratio of the proposed development is 1.21:1 which is less than the maximum floor space ratio of 1.25:1 which applies to the Site. 3. Clause 6.9 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available, or that adequate arrangements have been made to make them available when required: 1. (a) the supply of water, 2. (b) the supply of electricity, 3. (c) the disposal and management of sewage, 4. (d) stormwater drainage or on-site conservation, 5. (e) suitable vehicular access. 1. The Site is in an established urban area and I accept the joint position of the parties that all required services are available and will be constructed or supplied to a satisfactory level of compliance with the requirements of all relevant authorities. Conclusion 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 2. The Court notes that: 1. Fairfield City Council, as the relevant consent authority has agreed, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to amend Development Application No. DA292.1/2021 in accordance with the amended plans and documents listed below: Plan name Drawing Number Revision Date Prepared by Amended Architectural Plans Site/Roof Plan 01 Rev I 21/04/2022 Christopher Jordan Architecture & Design Demolition Plan 02 Rev J 21/04/2022 Christopher Jordan Architecture & Design Basement Floor Plan 03 Rev I 21/04/2022 Christopher Jordan Architecture & Design Ground Floor Plan Overall 04 Rev I 21/04/2022 Christopher Jordan Architecture & Design First Floor Plan Overall 05 Rev I 21/04/2022 Christopher Jordan Architecture & Design Second Floor Plan Overall 06 Rev I 21/04/2022 Christopher Jordan Architecture & Design Third Floor Plan Overall 07 Rev I 21/04/2022 Christopher Jordan Architecture & Design Block A Ground Floor Plan 08 Rev D 21/04/2022 Christopher Jordan Architecture & Design Block B Ground Floor Plan 09 Rev I 21/04/2022 Christopher Jordan Architecture & Design Block C Ground Floor Plan 10 Rev I 21/04/2022 Christopher Jordan Architecture & Design Block A Typical First-Third Floor Plan 11 Rev I 21/04/2022 Christopher Jordan Architecture & Design Block B Typical First-Third Floor Plan 12 Rev I 21/04/2022 Christopher Jordan Architecture & Design Block C Typical First-Third Floor Plan 13 Rev I 21/04/2022 Christopher Jordan Architecture & Design Elevations 14 Rev H 08/04/2022 Christopher Jordan Architecture & Design East Elevation Partial Block A 15 Rev G 08/04/2022 Christopher Jordan Architecture & Design East Elevation Partial Block B 16 Rev G 08/04/2022 Christopher Jordan Architecture & Design East Elevation Partial Block C 17 Rev G 08/04/2022 Christopher Jordan Architecture & Design South Elevation Partial Block A 18 Rev G 08/04/2022 Christopher Jordan Architecture & Design South Elevation Partial Block B 19 Rev G 08/04/2022 Christopher Jordan Architecture & Design South Elevation Partial Block C 20 Rev G 08/04/2022 Christopher Jordan Architecture & Design West Elevation Partial Block C 21 Rev G 08/04/2022 Christopher Jordan Architecture & Design West Elevation Partial Block B 22 Rev G 08/04/2022 Christopher Jordan Architecture & Design West Elevation Partial Block A 23 Rev G 08/04/2022 Christopher Jordan Architecture & Design North Elevation Partial Block C 24 Rev G 08/04/2022 Christopher Jordan Architecture & Design North Elevation Partial Block B 25 Rev G 08/04/2022 Christopher Jordan Architecture & Design North Elevation Partial Block A 26 Rev G 08/04/2022 Christopher Jordan Architecture & Design Sections 27 Rev F 08/04/2022 Christopher Jordan Architecture & Design Section A Partial Block A 28 Rev F 08/04/2022 Christopher Jordan Architecture & Design Section A Partial Block B 29 Rev F 08/04/2022 Christopher Jordan Architecture & Design Section A Partial Block C 30 Rev F 08/04/2022 Christopher Jordan Architecture & Design Section B Partial Block A 31 Rev F 08/04/2022 Christopher Jordan Architecture & Design Section C Partial Block A 32 Rev F 08/04/2022 Christopher Jordan Architecture & Design Area Diagrams AREA01 Rev H 08/04/2022 Christopher Jordan Architecture & Design Area Diagrams AREA02 Rev H 08/04/2022 Christopher Jordan Architecture & Design Areas Schedule AREA 03 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 9am SH01 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 10am SH02 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 11am SH03 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 12pm SH04 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 1pm SH05 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 2pm SH06 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 3pm SH07 Rev G 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 9am SH08 Rev C 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 10am SH09 Rev C 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 11am SH10 Rev C 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 12pm SH11 Rev C 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 1pm SH12 Rev C 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 2pm SH13 Rev C 08/04/2022 Christopher Jordan Architecture & Design Shadow Diagram Neighbouring 3pm SH14 Rev C 08/04/2022 Christopher Jordan Architecture & Design Perspective views 15/03/2022 External Finishes Schedule March 2022 Christopher Jordan Architecture & Design Cover Sheet L/00 Rev G 19/04/2022 A Total Concept Landscape Architects Site Plan L/01 Rev G 19/04/2022 A Total Concept Landscape Architects Landscape Plan Sheet 1 of 2 L/02 Rev F 11/04/2022 A Total Concept Landscape Architects Landscape Plan Sheet 2 of 2 L/03 Rev F 11/04/2022 A Total Concept Landscape Architects Planting Plan Sheet 1 of 2 L/04 Rev G 19/04/2022 A Total Concept Landscape Architects Planting Plan Sheet 2 of 2 L/05 Rev G 19/04/2022 A Total Concept Landscape Architects Plant Palette L/06 Rev G 19/04/2022 A Total Concept Landscape Architects Plant Palette L/07 Rev F 11/04/2022 A Total Concept Landscape Architects Plant Schedule L/08 Rev F 11/04/2022 A Total Concept Landscape Architects Product Details L/09 Rev F 11/04/2022 A Total Concept Landscape Architects General Notes C00.01 Rev D 27/04/2022 Engineering Studio Roof Drainage, Sediment and Erosion Control Plan C01.01 Rev D 27/04/2022 Engineering Studio Ground Drainage Plan C02.01 Rev D 27/04/2022 Engineering Studio Basement Drainage Plan C03.01 Rev D 27/04/2022 Engineering Studio Stormwater Details Sheet C04.01 Rev D 27/04/2022 Engineering Studio Acoustic Report ID No. 11921 Issue R01, Version 3 14/01/2022 PKA Acoustic Consulting Addendum to Acoustic Report' Reference No. PKA11921 R02v1 27/04/2022 PKA Acoustic Consulting BASIX Certificate No. 1203203M_02 27/04/2022 Operational Waste Management Plan Report No. SO1014 Rev G 26/04/2022 Elephants Foot Preliminary Site Investigation Reference No. 610.30715-R01 Version v1.0 January 2022 SLR Supplementary Investigation Report 03 May 2022 SLR SEPP 65 Design Verification Statement March 2022 Christopher Jordan Architecture & Design Traffic Impact Assessment Reference No. 0378r01v02 22/06/2021 PDC Consultants Swept Path Analysis Ground Level 001 09/02/2022 PDC Consultants Swept Path Analysis Basement Level 002 09/02/2022 PDC Consultants Swept Path Analysis Basement Level 003 09/02/2022 PDC Consultants Urban Design Study Rev A 17/02/2022 Smith & Tzannes Letter of offer 09/05/2022 Sue Sanki, Director of Kansanto Pty Ltd Land Dedication Plan Rev A 06/05/22 Christopher Jordan Architecture & Design 1. The amended development application documents listed above were lodged on the NSW planning portal on 6 May 2022. 2. The Applicant filed the amended development application with the Court on 6 May 2022. 1. The Court orders that: 1. The appeal is upheld. 2. Development application No. DA292.1/2021(as amended on 6 May 2022) for the demolition of existing structures and the erection of three, four storey residential flat buildings containing a total of 39 units over a common level of basement parking with 49 car parking spaces on the land described as Lot D Section 35 Deposited Plan 20450 (known as 147 Polding Street, Fairfield Heights), Lot I Section 35 DP 20450 (known as 1 Bodalla Street, Fairfield Heights) and Lot H Section 35 DP 20450 (known as 3 Bodalla Street, Fairfield Heights) is determined by the grant of development consent subject to the conditions in Annexure A. 3. The applicant is to pay the respondent's costs thrown away, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. ………………………… A Bradbury Acting Commissioner of the Court Annexure A (314938, pdf) ********** Amendments 30 May 2022 - The Court orders that: See [2022] NSWLEC 1272 - (1)Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the judgment in Kansanto Pty Ltd v Fairfield City Council [2022] NSWLEC 1256 is amended by replacing the reference to "DA 21/57" in order 2 and paragraph 15(1) with "DA 292.1/2021". 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: 30 May 2022