Land and Environment Court New South Wales Medium Neutral Citation: Palm Beach 53 Pty Limited v Newcastle City Council [2023] NSWLEC 1644 Hearing dates: Conciliation conference on 3 and 27 July, 9, 21, 28 and 31 August 2023 Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Class 1 Before: Targett AC Decision: The Court orders that: (1) The applicant is to pay the respondent's costs thrown away as a result of the amendments as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development Application No. DA2022/01233, as amended, for demolition of existing structures, erection of a three-storey mixed use development comprising three commercial tenancies at ground level, 16 residential apartments (shop top housing), strata subdivision and tree removals at Lot 11 in DP 1286353 known as 29 Moate Street, Georgetown, is determined by the grant of consent subject to conditions contained in Annexure "A". (4) The applicant is required to file the plans and documents referred to in Order (3) above within 7 days of the judgment being delivered. Catchwords: APPEAL – Development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.11, 8.14, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38, 91 Land and Environment Court Act 1979, ss 17, 34 Local Land Services Act 2013, s 60O Newcastle Local Environmental Plan 2012, ss 4.3, 4.4, 4.6, 6.1, 6.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, cll 4, 28 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Category: Principal judgment Parties: Palm Beach 53 Pty Limited (Applicant) Newcastle City Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) A Sinclair (Solicitor) (Respondent) Solicitors: Long Legal Pty Ltd (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/32924 Publication restriction: Nil Judgment Background 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent's (then) deemed refusal of the applicant's development application (DA2022/01233) (Development Application). The Development Application sought consent for the demolition of all existing structures, erection of a three-storey mixed use development comprising three commercial tenancies at ground level, 16 residential apartments (shop top housing), strata subdivision and tree removal, on land identified as Lot 11 in Deposited Plan 1286353, known as 29 Moate Street, Georgetown (Site). 2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act. The Development Application 1. The Development Application was lodged with the respondent on 28 October 2022. 2. The assessment period for the determination of the Development Application expired on 8 December 2022 in accordance with s 91(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 3. On 23 February 2023, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act. 4. On 24 April 2023, the Development Application was formally refused by the respondent. 5. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 3 and 27 July, 9, 21, 28 and 31 August 2023. I presided over the conciliation conference. 6. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Amended plans and further documentation were provided to the Court (cited at [41]) (Amended Development Application) in conjunction with a signed s 34 agreement dated 31 August 2023 and agreed jurisdictional statement. The amendments and additional documentation primarily related to: 1. updating architectural, landscaping and civil plans; 2. providing a cl 4.6 request in relation to an exceedance of the height standard in cl 4.3 of the Newcastle Local Environmental Plan 2012 (NLEP); and 3. identifying the contamination present on the Site and remediation works required to facilitate the proposed development. 1. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement. 2. 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. Jurisdictional considerations 1. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow. Owner's consent 1. The applicant is the registered proprietor of the Site and provided consent to the Development Application when it was lodged with the respondent. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH 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. The Amended Development Application contains a number of relevant documents concerning the contamination status and proposed remediation of the Site including: 1. Preliminary Contamination Investigation Report prepared by Agility Engineering, dated September 2022; 2. Detailed Site Investigation, prepared by Stantec, dated 25 July 2023; and 3. Report of Remedial Action Plan, prepared by Stantec, dated 27 July 2023 (Remedial Action Plan), (together, the Environmental Reports). 1. Further, the agreed conditions of consent address contamination and remediation, relevantly requiring: 1. remediation work to be carried out in accordance with the Remedial Action Plan; and 2. the preparation of a Construction Environment Management Plan prior to the issue of a Construction Certificate, which is required to detail strategies relating to environmental management of the Site during construction, including soil management, sediment control and environmental health and safety generally. 1. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied. 2. Having regard to the Environmental Reports and agreed conditions of consent, I am satisfied that the Site will be made suitable, after remediation, for the purposes for which development consent is sought before the Site is used for those purposes. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. The Amended Development Application seeks consent for the removal of one tree on the Site. 2. As the removal of the tree is ancillary to the proposed development, the parties agree that, in accordance with s 2.7(1) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the clearing of vegetation authorised by a development consent is a kind of clearing authorised under s 60O(a)(i) of the Local Land Services Act 2013 which does not require a permit or approval under the Biodiversity SEPP. 3. The parties agree and I accept that there is no matter that would prevent consent being granted for the removal of one tree on the Site. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. In compliance with the relevant requirements under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the applicant has obtained BASIX certificate (Certificate No. 1335770M) prepared by Evergreen Energy Consultants. 2. The parties agree that the Amended Development Application does not result in the development differing materially from the description contained in BASIX certificate No. 1335770M and therefore a new BASIX certificate that takes account of the amendments is not required. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 1. The parties agree that State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the Amended Development Application as it seeks consent to development for the purposes of a mixed use development with a residential component, including the erection of a new building, which is three storeys and contains 16 dwellings in accordance with cl 4 of SEPP 65. 2. In accordance with cl 28 of SEPP 65, I am satisfied that: 1. advice from the Design Review Panel has been obtained and considered; 2. the design quality principles have been considered; and 3. the Apartment Design Guide (ADG) has been considered, in relation to the proposed development. Newcastle Local Environmental Plan 2012 – general 1. The Site is zoned E1 Local Centre under the NLEP. Accordingly, development for the purpose of commercial premises and shop top housing is permitted with consent in the E1 zone. I have had regard to the zone objectives which are extracted below: To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. To encourage investment in local commercial development that generates employment opportunities and economic growth. To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. To maintain the hierarchy of commercial centres throughout the City of Newcastle, ensuring the scale of development is appropriate with the surrounding area and does not prejudice the viability of the Newcastle City Centre or other centres. To provide development that maintains an active street frontage that positively contributes to the safety and vibrancy of the pedestrian environment. 1. The Development Application was notified between 3 November and 17 November 2022. No submissions were received in response to the notification of the proposal. 2. Pursuant to cl 4.4 of the NLEP, a maximum floor space ratio (FSR) development standard of 1.5:1 applies to the Site. The parties agree that the Amended Development Application complies with this standard with the proposed development resulting in a FSR of 1.48:1. 3. Pursuant to cl 6.1 of the NLEP, the Site is mapped as a Class 5 Acid Sulfate Soils (ASS) risk area. As the Site is not within 500m of Class 1 - 4 land, an ASS management plan is not required in accordance with cl 6.1(2) of the NLEP. 4. The Amended Development Application seeks consent for excavation and earthworks. Clause 6.2(3) of the NLEP prescribes a number of mandatory matters that must be considered prior to the granting of development consent. In determining the Amended Development Application, I have considered the matters set out in cl 6.2(3) of the NLEP, including the fact that: 1. no significant cut or fill is proposed; 2. the car parking is proposed on ground level; and 3. the parties have agreed conditions of consent regarding contamination and remediation referred to at [15] above including that a Construction Environment Management Plan must be prepared prior to the issue of a Construction Certificate. Newcastle Local Environmental Plan 2012 – height of building standard 1. The height of building standard applicable to the Site is 11m according to cl 4.3(2) of the NLEP (Height Standard). The parties agree that the Amended Development Application seeks consent for works above the Height Standard, which at its highest point, has a maximum height of 11.23m. 2. The applicant has prepared a written request, pursuant to cl 4.6 of the NLEP which seeks to justify the variation to the Height Standard (Height Request). The parties agree that the Height Request adequately demonstrates that: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the NLEP); and 2. there are sufficient environmental planning grounds to justify contravening the Height Standard (pursuant to cl 4.6(3)(b) of the NLEP). 1. The parties agree that the Court can be satisfied of the matters at cl 4.6(4)(a) of the NLEP on the basis that: 1. the Height Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (pursuant to cl 4.6(4)(a)(i) of the NLEP); and 2. the proposed development will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives of the E1 Local Centre zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the NLEP). 1. The objectives of the E1 Local Centre zone that the parties agree are achieved are extracted above at [25]. The Height Request, however, considers the zoning objectives of the B2 Local Centre zone (which was the relevant zone in which the Site was situated until April 2023, when the B2 Local Centre zone was repealed and replaced by the E1 Local Centre zone). For completeness, the zoning objectives of the B2 Local Centre zone are extracted below: To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. To encourage employment opportunities in accessible locations. To maximise public transport patronage and encourage walking and cycling. To provide for residential development that maintains active retail and business frontages in order to contribute to a safe, attractive, friendly, accessible and efficient pedestrian environment. To maintain the hierarchy of urban centres throughout the City of Newcastle and not prejudice the viability of the Newcastle City Centre. 1. The objectives of cl 4.3(1)(a) of the NLEP that are said to be achieved are extracted below: to ensure the scale of development makes a positive contribution towards the desired built form, consistent with the established centres hierarchy, to allow reasonable daylight access to all developments and the public domain. 1. The Height Request (relevantly extracted below) asserts that: 1. the strict application of the Height Standard is unnecessary and unreasonable on the basis that: 1. the building height exceedance is only 2% above the development standard; 2. the maximum exceedance is limited in its distribution across the Site and affects the rear and eastern most part of the building only and results from a natural low point in the Site's topography; 3. the Amended Development Application meets the stated objectives of cl 4.3, specifically: 1. the proposed development makes a positive contribution towards the desired built form by activating both the Moate Street and Asher Street frontages with commercial uses at the ground level; and 2. the proposed development maintains satisfactory solar access to adjoining buildings and public areas and the diminutive nature of the height variation (230mm) means that a height compliant development would result in no material difference to the shadow impacts caused by the development. 1. the Amended Development Application meets the stated objectives of the B2 Local Centre zone, specifically: 1. The commercial units proposed by the development vary in size and have a flexible floor layout that is likely to appeal to a wide range of established or emerging local businesses. The residential component will further support commerce within the already thriving Georgetown local centre. 2. An accessible parking space and amenities are available on Site to employees working with the ground floor commercial spaces and those provided services to the residential and commercial components of the development. 3. The Site is well located for the use of public transport and the pedestrian network. An increase in density of development at the Site will further encourage public transport patronage in the area. 4. The commercial units are orientated to both the Moate and Asher Street frontages and the proposed development will provide public domain improvements, further contributing to the safe attractive, friendly, accessible and efficient pedestrian environment. 5. The scale of the proposed commercial units is commensurate with the Site's location in a "local centre" . The inclusion of residential units will result in a small increase in the local population, and thereby patronage of local businesses. 1. There are sufficient environmental planning grounds to justify contravening the development standard, including on the basis that the Amended Development Application: 1. meets the objectives of the B2 Local Centre zone and height control objectives in cl 4.3 of the NLEP; 2. is compatible with surrounding development; 3. will provide a high level or internal and external environmental amenity for residents and the works are expected to significantly improve the visual perception of the Site, with the development being consistent with the streetscape character expected of a neighbourhood centre; and 4. the additional height will have a negligible effect on solar access. 1. The respondent is satisfied that the Height Request addresses the matters required to be demonstrated by cl 4.6(3) of the NLEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives for development in the E1 zone. The respondent does not contend that the contravention of the Height Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard pursuant to cl 4.6(5) of the NLEP. 2. I am satisfied under cl 4.6(4) that the Height Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the Height Standard set out in cl 4.3(1)(a) and the objectives for development in the E1 zone set out in the Land Use Table in the NLEP, for the reasons given in the Height Request and noting the overlapping nature of many of the objectives in the E1 and now repealed B2 zone. 3. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the NLEP. I find no grounds on which the Court should not uphold the Height Request. 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 under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that the respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation, to the applicant amending its development application so as to rely on the following amended materials: Plan name Drawing Number Prepared by Dated Amended Architectural Plans Historic Context Analysis DA011 ELK Designs 23.11.2022 Site Plan DA030 ELK Designs 04.07.2023 Site Plan with Adjoining Development DA033 ELK Designs 03.07.2023 Site Coverage Plan - GF DA035 ELK Designs 04.07.2023 Site Coverage Plan - FF DA036 ELK Designs 04.07.2023 Perspectives DA040 ELK Designs 06.12.2022 Perspectives DA041 ELK Designs 06.12.2022 Perspectives DA042 ELK Designs 06.12.2022 Perspective DA043 ELK Designs 06.12.2022 Perspectives DA044 ELK Designs 06.12.2022 Ground Floor DA100 ELK Designs 06.12.2022 First Floor DA110 ELK Designs 06.12.2022 Second Floor Plan DA120 ELK Designs 06.12.2022 Roof Plan DA130 ELK Designs 06.12.2022 Elevations DA300 ELK Designs 04.07.2023 Elevations DA302 ELK Designs 03.07.2023 Elevations DA301 ELK Designs 04.07.2023 Elevations DA302 ELK Designs 04.07.2023 Height Control Diagram DA310 ELK Designs 04.07.2023 External Finishes DA350 ELK Designs 04.07.2023 Sections DA400 ELK Designs 04.07.2023 Sections DA401 ELK Designs 04.07.2023 GFA Ground Floor DA500 ELK Designs 04.07.2023 GFA First Floor DA501 ELK Designs 04.07.2023 GFA Second Floor Plan DA502 ELK Designs 04.07.2023 External Shadow Diagrams DA900 ELK Designs 04.07.2023 External Shadow Diagrams DA901 ELK Designs 04.07.2023 External Shadow Diagram DA902 ELK Designs 04.07.2023 External Shadow Diagram DA903 ELK Designs 04.07.2023 External Shadow Diagram DA904 ELK Designs 04.07.2023 External Shadow Diagram DA905 ELK Designs 04.07.2023 External Shadow Diagram DA906 ELK Designs 04.07.2023 Solar Access to Southern Building 21st June DA907 ELK Designs 04.07.2023 Solar Access to Southern Building 21st June DA908 ELK Designs 04.07.2023 First Floor Internal Solar Diagrams DA910 ELK Designs 04.07.2023 Second Floor Internal Solar Diagrams DA911 ELK Designs 04.07.2023 Cross Ventilation Diagrams DA950 ELK Designs 04.07.2023 Amended Landscape Plans Site Analysis L-01 Green Space Planning Co. June 2023 Landscape Report L-02 Green Space Planning Co. June 2023 Landscape Plan – Ground Floor L-03 Green Space Planning Co. June 2023 Landscape Plan – Level One L-04 Green Space Planning Co. June 2023 Plant Schedule L-05 Green Space Planning Co. June 2023 Amended Civil Plans Sedimentation and Erosion Control Plans C01 MPC Consulting Engineers 04.07.2023 Sedimentation and Erosion Control Details C02 MPC Consulting Engineers 04.07.2023 Stormwater Plan C03 MPC Consulting Engineers 04.07.2023 Stormwater Details C04 MPC Consulting Engineers 04.07.2023 Turning Path Entry Plan T01 MPC Consulting Engineers 04.07.2023 Turning Path Exit Plan T02 MPC Consulting Engineers 04.07.2023 Supporting Documentation Cl 4.6 Written Variation Request de Witt Consulting 06.07.2023 Orders 1. The Court orders that: 1. The applicant is to pay the respondent's costs thrown away as a result of the amendments as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application No. DA2022/01233, as amended, for demolition of existing structures, erection of a three-storey mixed use development comprising three commercial tenancies at ground level, 16 residential apartments (shop top housing), strata subdivision and tree removals at Lot 11 in DP 1286353 known as 29 Moate Street, Georgetown, is determined by the grant of consent subject to conditions contained in Annexure "A". 4. The applicant is required to file the plans and documents referred to in Order (3) above within 7 days of the judgment being delivered. N Targett Acting 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: 31 October 2023