Land and Environment Court New South Wales Medium Neutral Citation: Aidop No.3 Pty Ltd ATF Aidop No.3 Unit Trust v North Sydney Council [2022] NSWLEC 1662 Hearing dates: 13 and 18 October, 2, 11 and 24 November 2022 Date of orders: 30 November 2022 Decision date: 30 November 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The Applicant's amended written request under clause 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP) dated 1 November 2022, seeking a variation of the development standard for height under clause 4.3 of the NSLEP, is upheld. (3) The appeal is upheld. (4) Development application DA86/22, as amended, for the consolidation of 2 lots, demolition of existing structures, excavation and construction of a six-storey residential flat building containing 21 apartments over 2 levels of basement parking and parking at grade, landscaping and associated works at 96-98 Ben Boyd Rd, Neutral Bay, is determined by the grant of consent, subject to the conditions of consent in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15(3) Environment Planning and Assessment Regulation 2000 cl 55, Sch 1 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 5.21,6.2, 6.10 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chps 2, 10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 28, 30 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and infrastructure) 2021, Div 17 Texts Cited: North Sydney Council, Community Engagement Protocol (2019) North Sydney Development Control Plan 2013 Land and Environment Court of NSW, COVID-19 NSW Department of Planning and Environment, Apartment Design Guide, 2015 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: AIDOP No 3 Pty Ltd ATF Aidop No 3 Unit Trust (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Sonter (Applicant) K Law (Solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2022/165233 Publication restriction: No Judgment 1. COMMISSIONER: AIDOP No 3 Pty Ltd ATF Aidop No 3 Unit Trust (the Applicant) has appealed the refusal by North Sydney Council (the Respondent) of its Development Application DA 86/22, made with owner's consent, seeking consent for the consolidation of two lots, demolition of existing structures, excavation and construction of a six-storey residential flat building over two levels of basement parking and parking at grade, landscaping and associated works (the Proposed Development) at 96-98 Ben Boyd Rd, Neutral Bay (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Proposed Development was notified in accordance with the provisions of North Sydney Council's Community Engagement Protocol 2019 between 8 April 2022 and 22 April 2022. Twenty-one (21) submissions were received in response to the initial notification. Between 10 and 23 November 2022 the Amended Application was re-notified. 4. On 13 and 18 October, 2, 11 and 24 November 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant's development application, subject to conditions. 5. The conciliation conference was convened in a manner consistent with the Land and Environment Court's COVID-19 Pandemic Arrangements Policy. 6. A site inspection was undertaken prior to the conciliation conference being convened, and further objector submissions were during the site view stating concerns in relation to potential impacts concerning view loss, traffic and the bulk, scale and character of the Proposed Development. 7. At the conciliation conference following the site view, the Parties reached an 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 consent to the Applicants' development application, subject to conditions. 8. 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. 9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of North Sydney Local Environmental Plan 2013 (NSLEP): 1. the Subject Site is zoned as R4 High Density Residential pursuant to the provisions of cl 2.3 of NSLEP, and: 1. the proposed use 'residential flat building' is permissible within the R4 zone; 2. the Proposed Development is consistent with the objectives for development within the zone in which the development is proposed to be carried out; 1. the Development Application seeks consent for the demolition of existing structures on Subject Site and under cl 2.7 of the NSLEP, this requires consent. The Applicant has provided a waste management plan outlining the process of demolition and management of refuse materials; 2. pursuant to cl 4.3 of NSLEP in relation to the height of buildings (HoB) a development standard of 12m is applicable to development on the Subject Site; and 1. the Amended Application has reduced the overall height of the Proposed Development by 750mm from the original proposal, resulting in a maximum height of 13.65m, which is 1.65m above the HoB standard applicable to the Subject Site; 2. the Applicant has prepared a written request pursuant to the provisions of cl 4.6 of NSLEP, prepared by Mr Stephen Kerr of Glyde Consulting and dated 1/11/22, seeking to vary the applicable HoB standard; 3. the Parties submit, and I am satisfied, that the Applicant's Amended cl 4.6 written request is well founded and that the variation to the HoB standard is acceptable for the reasons set out the request, which I adopt: 1. the Applicant's written request to vary the HoB development standard pursuant to cl 4.6 of NSLEP, noted that compliance with the development standard was unreasonable or unnecessary given that the objectives of the standard are achieved notwithstanding the non-compliance, for reasons including: 1. the proposed variation is limited to part of the upper level, roof slab and lift overrun of the Proposed Development, with the majority of the building being located below the maximum building height; 2. the massing of the building has been arranged in direct response to the sloping topography, existing built form on site and surrounding character, such that the exceedance to the HoB development standard has been placed in locations to minimise potential adverse impacts on neighbouring properties; 3. the proposed built form has been designed to create an improved interface with the surrounding streets and neighbouring developments, considering the constraints that arise due to the Subject Site's significant sloping topography; 4. the HoB non-compliances are located at the south-west corner of the proposed built form and do not cause view loss of scenic, highly valued items or icons from neighbouring properties and this was confirmed within a revised View Impact Assessment, accompanied by updated photomontages and 3D views, prepared by Virtual Ideas, and which concluded that the amended form of the Proposed Development provides for reasonable and acceptable view sharing outcomes; 5. the portions of the Proposed Development that would contravene the HoB standard do not cause any unacceptable solar access or view impacts to adjoining dwellings, public reserves or streets; 6. the proposal facilitates the orderly and economic development of the Subject Site, and in particular the lot at 96 Ben Boyd Road, which is presently occupied by an isolated single dwelling house that is inconsistent with the objectives of the R4 Zone; 7. the redevelopment of the Subject Site will provide for the housing needs of the community within a high density residential environment in accordance with the objectives of the R4 zoning of the Subject Site; 8. the Proposed Development is compatible with the land uses in the locality. 1. the Applicant's written request to vary the HoB development standard pursuant to cl 4.6 of NSLEP, also noted that approval of the Proposed Development is in the public interest because the Proposed Development is consistent with the objectives of the development standard and there are sufficient environmental planning grounds to justify contravening the development standard, noting: 1. the natural topography of the site is a steep slope, with a slope from north to south, which creates physical constraints on the form of the development proposed on Subject Site, and the Applicant's proposed built form is responsive to these constraints; 2. the variation to the height does not result in any unreasonable impacts to residential amenity, solar access, views or privacy; 1. under the provisions of cl 4.4 of NSLEP the applicable Floor Space Ratio Map provides no maximum floor space ratio (FSR) for development on the Subject Site. 2. the provisions of cl 5.10 concern heritage conservation, and in relation to this: 1. the Subject Site is located within close proximity to one local heritage item 'House' at 107 Ben Boyd Road, Neutral Bay; 2. the Applicant has provided a Heritage Impact Statement with its Amended Application in relation to which, the Parties agree, and I am satisfied, that the Proposed Development will not prejudice the heritage significance of the nearby item; 3. the Subject Site includes an existing stone wall which is not a listed heritage item, but which does currently act as a visually distinctive stop at the point where the road splits and continues up Ben Boyd Road, and the Proposed Development includes retention of the existing stone wall, where possible, and includes a methodology for reconstructing the stonewall; 1. the provisions of cl 5.21 concern flood planning, and in relation to this the Subject Site is not located within a flood planning area and so this clause has no work to do in relation to the Proposed Development. However, the Applicant has included a Stormwater Management Report prepared by BG&E which confirms and assesses the current and future drainage design arrangements for the Subject Site and Proposed Development; 2. the provisions of cl 6.10 concern earthworks, and the Proposed Development includes earthworks for the provision of two basement parking levels and parts of the dwellings, and in relation to this: 1. the Applicant has provided a Geotechnical Report as well as an updated Geotechnical Report both prepared by EI Australia and which provide additional detail regarding applicable rock classifications; 2. the Proposed Development, as amended, has significantly reduced the proposed extent of bulk excavation by 258m2 within the basement level 1 and 270m2 within basement level 2; 3. the Applicant has also prepared a Structural Excavation Methodology for the Proposed Development prepared by BG&E; and 4. the Parties advise, and I am satisfied, that the Applicant's proposed excavation methodology is acceptable, and the recommendations provided within the Applicant's Geotechnical Report have been adopted within the Parties' agreed conditions of consent which would be imposed with the grant of consent for the Proposed Development; 1. in relation to the provisions of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Applicant's amended development application is accompanied by an updated BASIX Certificate (Certificate No. 1273153M_03 dated 21 November 2022) which is consistent with the Amended Application; 2. in relation the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the Parties advise, and I am satisfied, that: 1. the Applicant has provided a Preliminary Site Investigation prepared by EI Australia which found that: 1. the Subject Site had been used for residential purposes since at least 1955; 2. there was no evidence of major excavation or filling activity or of manufacturing or other potentially contaminating activity at the site or in the general area; and 3. the Parties agree that the potential for contamination to exist on the Subject Site is low; and 4. I am satisfied, relying on the Application's site investigations, that the Subject Site is, or will be made, suitable for its proposed use for residential purposes in satisfaction of the provisions of cl 4.6 of SEPP R&H; 1. in relation to the provisions of State Environmental Planning Policy (Transport and infrastructure) 2021 (SEPP T&I) the provisions of Division 17 of SEPP T&I concerning roads and traffic apply to the Proposed Development, and in relation to these: 1. the Subject Site does not have a frontage to, nor is it located within proximity to, a classified road; 2. the potential impact of the Proposed Development regarding traffic generation, design of the car lifts and basement car park accessibility, along with requisite swept paths and sight lines, have been assessed by the Applicant's traffic engineer and which have been reported in the following documents: 1. Transport Assessment prepared by JMT Consulting dated 14 March; 2. an updated Traffic Assessment prepared by JMT Consulting dated 28 October 2022; 1. these assessments conclude that the Proposed Development provides: 1. an acceptable level of traffic generation for a high-density residential use relative to the Subject Site's location and surrounding road network and public transport availability; 2. a compliant number of car, bike and motorcycle parking spaces as required under the provisions of North Sydney Development Control Plan 2013 (NSDCP); 3. adequate driver sight lines for entry and exit; 4. suitable vehicle site access arrangements; 5. an acceptable car lift system appropriate for the scale of the Proposed Development, as amended; and 6. acceptable and compliant vehicle swept paths; 1. the Parties agree, and I am satisfied, that the Proposed Development, as amended, is compliant with the relevant criteria and matters for consideration under the provisions of SEPP T&I; 1. the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65) apply to the Proposed Development, as amended, and in relation to those: 1. the provisions of cl 28(2) of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration the following prior to determining a development application: 1. the advice (if any) obtained from the design review panel; and 2. the design quality of the development when evaluated in accordance with the design quality principles; and 3. the provisions of the Apartment Design Guide; 1. the provisions of cl 30(2)(a) require that a consent authority, or the Court on appeal, must not grant consent unless it is not satisfied that the development demonstrates adequate regard to the design quality principles; and 2. the Applicant has provided a Design Statement and a Verification Statement, along with an updated Verification Statement prepared by the Applicant's architect, which confirm that the design quality of the development in relation to design quality principles, and the Apartment Design Guide, have been considered; and 3. in relation to the potential acoustic impacts of the Proposed Development, the Parties agree, and I am satisfied, that the development has been designed to comply with the recommendations provided by the Applicant's acoustic engineer as provided in the following reports: 1. an Acoustic Report prepared by E-Lab Consulting included in the Development Application assessed the Proposed Development in compliance with internal acoustic amenity; and 2. an Updated Acoustic Report prepared by E-Lab Consulting in relation to the Proposed Development, as amended, which assessed the potential acoustic impacts of the car-lift on neighbouring developments; and 1. the Parties agree, and I am satisfied, that the Proposed Development, as amended: 1. has fulfilled the requirements of both cll 28 and 30 of SEPP 65; and 2. satisfies the requisite design quality principles applicable in accordance with these clauses; 1. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C): 1. Chapter 10 of SEPP B&C includes: 1. aims of which are to protect the catchment, foreshores, waterways and island of Sydney Harbour, including views to and from Sydney Harbour; and 2. provisions relating to the Subject Site which is located within the Sydney Harbour Catchment, and 1. the potential impacts of the Proposed Development on the Sydney Harbour catchment have been assessed in relation to: 1. the amended architectural plans prepared by MHNDU; 2. the View Sharing Assessment prepared by Urbis dated March 2022; 3. an Updated View Sharing Addendum prepared by Urbis dated 31 October 2022; and 4. View Impact Photomontages prepared by Virtual Ideas dated October 2022; 1. The Parties agree, and I am satisfied, that on the basis of these documents, the Proposed Development provides for reasonable and acceptable view sharing outcomes for dwellings immediately neighbouring the Subject Site; 2. Chapter 2 of SEPP B&C relates to clearing vegetation in non-rural areas, and in relation to this: 1. the Proposed Development seeks consent to remove 7 trees on the Subject Site; 2. the removal of these trees has been assessed within the Applicant's Arboricultural Development Impact Assessment Report prepared by Birds Tree Consultancy and dated 8 March 2022 which concluded that the removal of these trees is consistent with the provisions of "Part 16 – Tree and Vegetation Management" in NSDCP having regard to the tree species, integrity, level of significance and replacement planting as proposed in the landscaping strategy for the site; and 3. the Parties agree, and I am satisfied, that the Proposed Development is consistent with the provisions of Chapter 2 of SEPP B&C; 1. there are no other provisions of NSDCP that would form a basis for refusal of the Proposed Development; 2. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act. 1. Having considered the advice of the Parties, provided above at [9], I agree that: 1. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied; 3. approval of the Proposed Development is in the public interest. 1. Further, 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. 2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 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 merit assessment of the issues that were originally in dispute between the Parties. 4. The Court notes that: 1. North Sydney Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA86/22 to rely upon the following documents: Plan Name Drawing number Revision Date Prepared by Architectural Plans Cover Page DA0000 C 01/11/2022 MHDNU Project Summary DA0001 C 01/11/2022 MHDNU Site Context DA1000 C 01/11/2022 MHDNU Site Analysis DA1001 C 01/11/2022 MHDNU Site Plan DA1000 C 01/11/2022 MHDNU Demolition Plan DA1003 C 01/11/2022 MHDNU Basement 02 Plan DA2000 C 01/11/2022 MHDNU Basement 01 Plan DA2001 C 01/11/2022 MHDNU Ground Floor Plan DA2002 C 01/11/2022 MHDNU Level 1 Floor Plan DA2003 C 01/11/2022 MHDNU Level 2 Floor Plan DA2004 C 01/11/2022 MHDNU Level 3 Floor Plan DA2005 C 01/11/2022 MHDNU Level 4 Floor Plan DA2006 C 01/11/2022 MHDNU Level 5 Floor Plan DA2007 C 01/11/2022 MHDNU Roof Plan DA2008 C 01/11/2022 MHDNU Elevation North DA3000 C 01/11/2022 MHDNU Elevation South DA3001 C 01/11/2022 MHDNU Elevation East DA3002 C 01/11/2022 MHDNU Elevation West DA3003 C 01/11/2022 MHDNU Section A DA3100 C 01/11/2022 MHDNU Section B DA3101 C 01/11/2022 MHDNU External Finishes 01 DA6000 C 01/11/2022 MHDNU External Finishes 02 DA6001 C 01/11/2022 MHDNU SEPP 65 – Solar & Cross Ventilation DA9100 C 01/11/2022 MHDNU SEPP 65 - Storage DA9101 C 01/11/2022 MHDNU Landscape Calculation DA9102 C 01/11/2022 MHDNU Site Coverage Diagram DA9103 C 01/11/2022 MHDNU Height Plane Diagram DA9104 C 01/11/2022 MHDNU Waste Management Plan DA9300 C 01/11/2022 MHDNU Adaptable Unit – Level 3 & 4 DA9301 C 01/11/2022 MHDNU Landscape plans Concepts Landscape Plan Page 21 D 28/10/2022 Arcadia Landscape Architecture Concepts Entry Forecourt Legend Page 22 D 28/10/2022 Arcadia Landscape Architecture Concepts Entry Forecourt Sections A B Key Plan Page 23 D 28/10/2022 Arcadia Landscape Architecture Concepts Entry Private Courtyards Sections D E Key Plan Page 24 D 28/10/2022 Arcadia Landscape Architecture Concepts Private Courtyards Section F Key Plan Page 25 D 28/10/2022 Arcadia Landscape Architecture Concepts Sandstone Edge Conditions Key Plan Page 26 D 28/10/2022 Arcadia Landscape Architecture Concepts Rooftop Planting Page 27 D 28/10/2022 Arcadia Landscape Architecture Landscape Areas Page 29 D 28/10/2022 Arcadia Landscape Architecture Canopy Cover Page 30 D 28/10/2022 Arcadia Landscape Architecture Design Strategies Material Look and Feel Page 31 D 28/10/2022 Arcadia Landscape Architecture Design Strategies Indicative Lighting Strategy Page 32 D 28/10/2022 Arcadia Landscape Architecture Design Strategies Planting Look and Feel Page 33 D 28/10/2022 Arcadia Landscape Architecture Design Strategies Planting Palette Page 34 D 28/10/2022 Arcadia Landscape Architecture Design Strategies Planting Schedule Page 35 D 28/10/2022 Arcadia Landscape Architecture Landscape Plan Ground SK1 D 28/10/2022 Arcadia Landscape Architecture Landscape Plan Rooftops SK2 D 28/10/2022 Arcadia Landscape Architecture Landscape Details SK3 D 28/10/2022 Arcadia Landscape Architecture Stormwater plans Cover Sheet, Locality Plan and Drawing Index CI-0000 B 31/10/2022 BG&E General Notes CI-0001 B 31/10/2022 BG&E Ground Floor Siteworks and Drainage Plan CI-0200 C 31/10/2022 BG&E Level 1 Siteworks and Drainage Plan CI-0201 A 31/10/2022 BG&E Driveway Sections CI-0270 B 31/10/2022 BG&E Drainage Catchment Plan CI-0300 C 31/10/2022 BG&E Drainage Details CI-0340 B 31/10/2022 BG&E OSD Plans, Sections and Details CI-0350 B 31/10/2022 BG&E Erosion and Sediment Control Plan CI-0700 C 31/10/2022 BG&E Erosion and Sediment Control Details CI-0710 B 31/10/2022 BG&E Reports Updated Clause 4.6 Request prepared by GYDE dated 1 November 2022 Updated BASIX Certificate No. 1273153M_03 prepared by E-LAB Consulting dated 21 November 2022 Updated BASIX Compliance Report prepared by E-LAB Consulting dated 22 November 2022 Updated SEPP 65 Verification Statement prepared by MHNDH dated 31 October 2022 Updated Traffic Report prepared by JMT Consulting dated 28 October 2022 Updated Geotechnical Investigation prepared by EI Australia dated 21 September 2022 Aboriginal Due Diligence Report prepared by Curio Projects dated 22 September 2022 Structural Excavation Methodology prepared by BG&E dated 25 August 2022 1. the Amended Application was lodged on the NSW planning portal on 24 November 2022; 2. the Amended Application was filed with the Court on 24 November 2022. Orders 1. The Court orders that: 1. the Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed; 2. the Applicant's amended written request under clause 4.6 of the North Sydney Environmental Plan 2013 dated 1 November 2022, seeking a variation of the development standard for height under clause 4.3 of the NSLEP, is upheld; 3. the appeal is upheld; 4. Development Application DA86/22, as amended, for the consolidation of two lots, demolition of existing structures, excavation and construction of a six-storey residential flat building containing 21 apartments over two levels of basement parking and parking at grade, landscaping and associated works at 96-98 Ben Boyd Rd, Neutral Bay, is determined by the grant of consent, subject to the conditions of consent in Annexure "A". M Chilcott Commissioner of the Court ********** Annexure A 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 November 2022