Land and Environment Court New South Wales Medium Neutral Citation: Hyside 34 Leicester Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1286 Hearing dates: Conciliation conference on 1 and 23 February 2022 and 4 March 2022 Date of orders: 03 June 2022 Decision date: 03 June 2022 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: 1) The Applicant's written clause 4.6 request to vary the permitted height standard pursuant to Clause 4.3 of the Canada Bay Local Environmental Plan 2013, dated March 2022 is upheld. 2) The Applicant is granted leave to amend Development Application No. DA2021/0089 and rely upon the following amended plans and documents, which are referenced in Condition 1 of Schedule B at Annexure 'A'. 3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent as agreed or assessed. 4) The appeal is upheld. 5) Consent is granted to Development Application DA2021/0089 for the demolition of existing structures, amalgamation of lots and the construction of a five (5) storey residential flat building with 35 apartments above basement and car park, at 30 - 34 Leicester Avenue, Strathfield, and demolition of certain structures and construction of part of a private road upon 36 Leicester Avenue, Strathfield, subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Canada Bay Local Environmental Plan 2013, cll 2.7, 4.1A, 4.3, 4.6, 6.1, 6.2, 6.11 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979, s 34 Local Land Services Act 2013, s60O(a) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 8.1 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Hyside 34 Leicester Pty Ltd (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Pike and Verekers Lawyers (Respondent) File Number(s): 2021/271504 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the City of Canada Bay Council (the Council) of a development application DA2021/0089 (the DA). 2. The DA relates to a 1738.8m² parcel of land (including the land required for future access) identified as Lot 1 and 2, DP 1030696 30 and 30A Leicester Avenue), Strathfield, Lot 1 DP 926812, (32 Leicester Avenue), Strathfield, and Lot 1, DP 924827, (34 Leicester Avenue) and Lot 1 and 2 DP 1059530 (36 Leicester Avenue), Strathfield (the Site). 3. The DA as submitted to the Council on 3 May 2021 sought consent for the demolition of existing structures, amalgamation of lots and the construction of a six (6) storey residential flat building with 42 apartments above basement carparking (the Proposed Development) on that part of the site known as 30-34 Leicester Avenue. 4. Vehicular access to the Site is via a future private road that is proposed to be constructed as part of the DA over the rear of 36 Leicester Avenue, emanating from the current public road known as Hilts Road. The sole purpose of 36 Leicester forming part of the land the subject of the development application was for the construction of the road at the rear of No 36 and the consequent demolition of the shed at the rear of No 36 to facilitate the construction of the road. 5. The Development Application was notified by the Respondent pursuant to the EPA Act between 4 May 2021 and 25 May 2021. Twelve (12) submissions were made to the Respondent in response, and these submissions have been considered by the Respondent and by the Court. The Court also was provided with one written submission from an objector during the s34 conciliation. 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 1 February 2022, 23 February 2022 and 4 March 2022. I have presided over the conciliation conference. 6. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 7. On 31 May 2022 the parties advised the Court that they had signed an agreement pursuant to s34(3) of the LEC Act and filed a copy of that agreement with the Court. On 4 March the parties also filed a copy of the various documents that comprised the final amended plans, as uploaded to the NSW planning portal on 3 March and referred to in the s 34 agreement. 8. The main changes between the DA plans refused by the Planning Panel and the final amended plans (being the 14 February plans) the subject of the s 34 agreement, can be summarised as: 1. A reduction in the overall height of the Proposed development from 19.53m to 17.561m; 2. A reduction in the number of apartments from 42 apartments to 35 apartments; and 3. A change to the mix of apartments to now comply with Canada Bay LEP 2013, which requires at least 20% of the total dwellings proposed as a studio or one bedroom dwelling and at least 20% of the total dwellings proposed with at least 3 bedrooms. 1. 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. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. Satisfaction of jurisdiction 1. The relevant jurisdictional matters have been identified by the parties. In relation to the Canada Bay Local Environmental Plan 2013 (CBLEP 2013) the relevant provisions are: 1. The Proposed Development is characterised as a residential flat building which is permissible with consent within the R4 High Density zone under CBLEP 2013 and is consistent with the zone objectives, which are set out in the Land Use Table of CBLEP as "to provide for the housing needs of the community within a high density residential environment" and "to provide a variety of housing types within a high density residential environment." 2. Consent for the demolition of the existing structures on the Site are sought as part of the Proposed Development pursuant to cl 2.7 of the CBLEP. I am satisfied that demolition of the structures is acceptable provided the demolition is carried out in accordance with the relevant standards and demolition plan. 3. The maximum height of the Proposed Development, as amended, is 17.561m which contravenes the building height development standard in cl 4.3(2) of CBLEP 2013. 4. The parties agree that the written request seeking a variation to the height standard, prepared pursuant to cl 4.6 of the LEP is acceptable and should be upheld. For the reasons contained in the cl 4.6 variation request, I am satisfied that the applicant's written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the Canada Bay LEP 2013 are therefore satisfied. 5. I am also satisfied, for the reasons set out in the cl 4.6 variation request, that the written request has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R4 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the Canada Bay LEP 2013 are therefore satisfied. 6. Clause 4.1A of CBLEP specifies a minimum allotment size of 1500m2 for residential flat buildings in R4 high density zones. The site with an area of 1738.8m2 satisfies this development standard. 7. In relation to cl 6.1 of the CBLEP concerning acid sulphate soils, the CBLEP's Acid Sulfate Soils Map shows the Site as not being in any of the 5 classes of land within that clause. Therefore, I am satisfied that there is no need for the preparation of an acid sulphate soils management plan to be prepared and the objectives of that clause are met. 8. Under cl 6.2(3) of the CBLEP, development consent is required for earthworks to ensure they will not have a detrimental impact, unless the earthworks are (a) exempt development or (b) ancillary to development that is permitted without consent. In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters set out in cl 6.2(3) before granting development consent. I am satisfied that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items, or features of the surrounding land. 9. Under cl 6.11 of the CBLEP, the residential flat building is required to provide a mix of dwelling sizes, with at least 20% of the total dwellings proposed as a studio or one bedroom dwelling and at least 20% of the total dwellings proposed with at least 3 bedrooms. The amended proposal complies with this development standard and I am satisfied that the objectives of that clause to provide a mix of dwelling types in residential flat buildings, to provide housing choice for different demographics, living needs and household budgets and to promote development with a range of household sizes are met. 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. 2. A Preliminary Geotechnical Assessment of the Site was prepared by EI-Australia dated 8 March 2021. That report identifies at page 13 that "the site was deemed suitable for the proposed (residential) development, in accordance with clause 7 of State Environmental Planning Policy 55". Further, as the development site has been historically used as residential accommodation and there is no evidence of potentially contaminating activities occurring on site, there is no need to carry out a preliminary site investigation and I am satisfied that the land is not contaminated, and Ch 4 of SEPP Resilience has been considered and addressed. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an amended BASIX certificate has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument. 4. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) regulates the clearing of native vegetation on urban land and land zoned for environmental conservation/management that does not require development consent. The Proposed Development will not result in the clearing of any native vegetation or clearing that exceeds the biodiversity offsets scheme and does not involve clearing that is or forms part of a heritage item or a heritage conservation area, or is or forms part of an Aboriginal object or that is a known as an Aboriginal place of heritage significance. 5. Clause 8(1) of the Vegetation SEPP provides: (1) An authority to clear vegetation is not required under this Policy if it is clearing of a kind that is authorised under section 60(o) of the Local Land Services Act 2013 (Clearing authorised under other legislation) or under Part 5B (Private native forestry) of that Act. This subclause does not apply to clearing merely because it is a part of or ancillary to the carrying out of exempt development. 1. Section 60O of the Local Land Services Act 2013 provides relevantly: 60O For the purposes of this Part, the clearing of native vegetation in a regulated rural area is authorised under other legislation in any of the following cases— … The clearing was authorised by— (i) a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or 1. The Vegetation SEPP is overcome in the present case due to the need for development consent for the removal of trees under Pt 4 of the EPA Act. 2. In relation to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guide (ADG): 1. The design quality principles of SEPP 65 and the relevant provisions of the ADG have been taken into consideration, and the parties agree the proposed development demonstrates that adequate regard has been given to them. Clauses 28 and 30 of SEPP 65 have therefore been satisfied. 2. The Amended DA is supported by a SEPP 65 Design Verification Statement prepared by Simon Thorne of Integrated Design Group dated 14 February 2022 (Design Verification Statement) in satisfaction of the requirement in cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The Design Verification Statement confirms that the proposed development has been designed to be consistent with the design quality principles of SEPP 65 and display a high level of compliance with the provisions of the ADG. 1. I note that the parties agree that the design of the amended proposal is compatible with the desired future character of the local area, known as the Strathfield Triangle Precinct, and that the Proposed Development is of a bulk and scale that is commensurate with that envisaged by the prescribed standards and controls. Disposal of proceedings in accordance with the parties' decision 1. 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' agreement. 2. The Court notes: 1. The Applicant has filed the amended application with the Court on 4 March 2022. 2. The Applicant has amended the application with the consent of the Respondent Council. 3. The Applicant has uploaded the amended material to the NSW planning portal. 4. The Applicant has filed the amended architectural plans (being the 14 February plans) with the Court on 4 March 2022. 1. The Court orders: 1. The Applicant's written clause 4.6 request to vary the permitted height standard pursuant to Clause 4.3 of the Canada Bay Local Environmental Plan 2013, dated March 2022 is upheld. 2. The Applicant is granted leave to amend Development Application No. DA2021/0089 and rely upon the following amended plans and documents, which are referenced in Condition 1 of Schedule B at Annexure 'A'. 3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent as agreed or assessed. 4. The appeal is upheld. 5. Consent is granted to Development Application DA2021/0089 for the demolition of existing structures, amalgamation of lots and the construction of a five (5) storey residential flat building with 35 apartments above basement and car park, at 30 - 34 Leicester Avenue, Strathfield, and demolition of certain structures and construction of part of a private road at 36 Leicester Avenue, Strathfield, subject to the conditions set out in Annexure 'A'. ………………………. L Sheridan Acting Commissioner of the Court Annexure A (130310, docx) ********** 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: 03 June 2022