Land and Environment Court New South Wales Medium Neutral Citation: Woods v Newcastle City Council [2023] NSWLEC 1533 Hearing dates: Conciliation conference held 28 August 2023. Final agreement filed 28 August 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA2021/01619 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed amount of $7,500 within 28 days of the date of these orders. (3) The Applicant's written request, pursuant to cl 4.6 of the Newcastle Local Environmental Plan 2012 (NLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the NLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA2021/01619 (as amended) for demolition of existing dwelling, construction of multi-dwelling housing development comprising fourteen dwellings and ancillary development, and one-into-fifteen lot community title subdivision at 1A Karoola Road, Lambton, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing development – cl 4.6 written request – floor space ratio – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Newcastle Local Environmental Plan 2012, cll 2.3, 2.6, 4.4, 4.6, 5.21, 6.1, 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Texts Cited: Department of Planning and Environment, Planning Circular PS 18-003 February 2018 Category: Principal judgment Parties: Shane Woods (Applicant) Newcastle City Council (Respondent) Representation: Counsel: A McKelvey (Solicitor) (Applicant) J Griffiths (Solicitor) (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Moray and Agnew Lawyers (Respondent) File Number(s): 2023/91263 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Shane Woods (the Applicant), against the refusal of Development Application DA2021/01619 (the DA) by Newcastle City Council (the Respondent). At the time of its refusal, the DA sought consent for the demolition of existing structures, tree removal, construction of a multi-dwelling housing development comprising fourteen dwellings, and associated one into fifteen lot community title subdivision at 1A Karoola Road, Lambton (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 August 2023. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular note, the proposal has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of stormwater management, conflicts with registered easements, inconsistency with side and rear setbacks, exceedance of the floor space ratio, inadequate solar access and inadequate waste management facilities amongst others. 5. 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 amended DA. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 8. The DA was publicly notified from 6 December 2021 to 17 January 2022 and twenty-three submissions were received by the Respondent. An amended DA was notified again from 28 September to 18 October 2022, with a further twenty-one submissions received by the Respondent. At the commencement of the conciliation conference the Court benefited from oral submissions made by a number of local residents raising issues of concern. 9. The issues raised in written and oral submissions include concerns for over-development, excessive floor space ratio, tree loss, inadequate building separation, flooding and stormwater management, privacy impacts, parking and access, and traffic safety. 10. The parties agree that the amended DA satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 11. The parties agree, and I am satisfied, that the Newcastle Local Environmental Plan 2012 (NLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential and the proposed development – characterised as multi-dwelling housing – is permissible with consent. 12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the NLEP, the proposed development is consistent with the R2 Low Density Residential zone objectives, which include providing for the housing needs of the community within a low density residential environment and to accommodate a diversity of housing forms that respect the amenity, heritage and character of surrounding developments and the quality of the environment. 13. The parties agree, and I am satisfied, that pursuant to cl 2.6 of the NLEP, subdivision is permissible with development consent. 14. The parties agree, and I am satisfied, that all principal development standards of the NLEP have been met by the amended DA, with the exception of cl 4.4, Floor space ratio (FSR), which establishes a maximum FSR development standard of 0.6:1 for the site. 15. In such an instance, cl 4.6(3) of the NLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 16. Clause 4.6(4) of the NLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 17. Additionally, cl 4.6(4)(b) of the NLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 18. As required by cl 4.6 of the NLEP, the Applicant has provided a written request (dated 27 July 2023) seeking to vary the FSR development standard. 19. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of building development standard for the following reasons: 1. The amended DA exceeds the 0.6:1 development standard, proposing a FSR of 0.61:1 which is 0.01:1 greater than the development standard, or a variation of approximately 1.6%. 2. The FSR exceedance arises partly due to the method of calculation, which excludes those parts of the site area which serve as an access laneway or 'battle axe' handle. 3. The parties agree to adopt the more conservative of two possible methods of calculation, which results in the minor exceedance noted above. If the alternative method of calculation were adopted, no FSR exceedance arises. 4. While the FSR is exceeded slightly, the proposed development complies with all other development controls related to building height, solar access, building separation and setback requirements. 5. The amended DA represents an appropriate urban infill density in an area that has been identified as a Local Centre (Minor) consistent with the Respondent's Local Centres Hierarchy. The amended DA will ensure appropriate housing stock that provides for the future needs of the community is delivered to the area. 6. The objectives of the NLEP Zone R2 Low Density Residential land use zone include providing for the housing needs of the community within a low density residential environment and accommodating a diversity of housing forms that respect the amenity, heritage and character of surrounding development and the quality of the environment. I am satisfied the amended DA meets these objectives. 7. The objectives of cl 4.4 of the NLEP - Floor space ratio, include to provide an appropriate density of development consistent with the established centres hierarchy, and to ensure building density, bulk and scale make a positive contribution towards the desired built form as identified by the established centres hierarchy. I am satisfied the amended DA meets these objectives. 8. The amended DA resolves the Respondent's earlier contentions, and in particular the amended DA now conforms with the relevant development controls for building setback to side and rear boundaries. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the FSR development standard and I find it to uphold the written request. 2. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the NLEP, Flood planning, the site is identified within the relevant flood planning area and accordingly, the amended DA has been assessed by the Respondent's stormwater and flood engineers against those matters set out at cl 5.21(2) and (3). The parties agree, and I am satisfied that the amended DA satisfies cl 5.21 of the NLEP. 3. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the NLEP, Acid sulfate soils, the site is identified as Class 5 land within the relevant Acid Sulfate Soils Map. However, since the DA does not propose works within 500m of any adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum, and since the DA will not lower the water table below 1m Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land, therefore an acid sulfate management plan is not required. 4. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the NLEP, Earthworks. The amended DA has been assessed by the Respondent and I am satisfied it addresses those matters set out at cl 6.2(3). Agreed conditions of consent reflecting the matters at cl 6.2(3) are imposed. 5. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards. 6. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Pursuant to s 2.48 of SEPP Infrastructure, the DA was referred to Ausgrid. A response was received from Ausgrid and agreed conditions of consent are imposed to reflect the substance of this response. 7. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). An amended BASIX certificate number 1251120M_04, dated 31 August 2023 has been provided with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate. 8. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 9. The Court notes that: 1. Pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the agreement of the Respondent. 2. The Applicant has filed the amended DA with the Court on 31 August 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA2021/01619 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed amount of $7,500 within 28 days of the date of these orders. 3. The Applicant's written request, pursuant to cl 4.6 of the Newcastle Local Environmental Plan 2012 (NLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the NLEP, is upheld. 4. The appeal is upheld. 5. Consent is granted to Development Application DA2021/01619 (as amended) for demolition of existing dwelling, construction of multi-dwelling housing development comprising fourteen dwellings and ancillary development, and one-into-fifteen lot community title subdivision at 1A Karoola Road, Lambton, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court 91263.23 Annexure A 91263.23 Annexure B ********** 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: 15 September 2023