Land and Environment Court New South Wales Medium Neutral Citation: PP Neutral Bay Pty Ltd v North Sydney Council [2023] NSWLEC 1664 Hearing dates: Conciliation conference on 12 and 25 October 2023 Date of orders: 08 November 2023 Decision date: 08 November 2023 Jurisdiction: Class 1 Before: Horton 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, in a sum to be agreed or assessed. (2) The Appeal is upheld. (3) Development Application DA 334/22 for the demolition of existing structures and construction of a 4 storey residential flat building with 2 levels of basement parking at 53-55 Yeo Street Cremorne, is approved subject to conditions set out in Annexure A to this agreement. Catchwords: DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R4 High density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 1.3, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38, Sch 7 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 6.10 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10, ss 6.65, 10.1, 10.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, Sch 1, cl 28 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: PP Neutral Bay Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) K Law (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Matthews Folbigg (Respondent) File Number(s): 2023/50417 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by North Sydney Council of Development Application DA334/22 (the DA) for the demolition of existing structures and construction of a 4-storey residential flat building with 2 levels of basement car parking at 53-55 Yeo Street, Cremorne. 2. On 12 September 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties' advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters. 4. I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 26 October 2023, in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 8. The site is located in the R4 High Density Residential zone, according to the North Sydney Local Environmental Plan 2013 (NSLEP), in which residential flat buildings are permitted with consent, where consistent with the objectives of the R4 zone, being: • 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 encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a reasonably high level of residential amenity is achieved and maintained. 1. The proposed development exceeds the height standard of 12m that applies to the site by operation of cl 4.3 of the NSLEP. The Applicant relies upon a written request authored by James Lovell and Associates dated 25 October 2023, and prepared in accordance with cl 4.6 of the NSLEP (the written request). 2. The written request states the proposal exceeds the height standard by a maximum of 1.5m at the top of the lift overrun, and by a dimension of 300mm at the southern perimeter of the building parapet. This is depicted in a figure contained in the written request, re-produced below as Figure 1. Figure 1: Exceedance of height standard 1. The written request asserts that the objectives of the height standard are achieved notwithstanding the non-compliance. For completeness, the relevant objectives of the height standard are: (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views,) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area, … 1. The objectives are said to be achieved, notwithstanding the exceedance, for reasons summarised as follows: 1. The proposal reflects the natural landform of objective (a) in two ways. Firstly, the site has a fall from north to south, and the proposal adopts a mid point on the site as ground floor level. Secondly, the uppermost level causing the exceedance is set back to the north and south. 2. There are no significant views affected by the exceedance of the height standard of a sort identified in objective (b), and the exceedance does not result in failure to maintain solar access to existing dwellings, nor to promote solar access to future development, which is the object of objective (c). A Solar Access Assessment that compares the existing and proposed conditions accompanies the DA, cited by the written request, which identifies four properties at 4, 6, 8 and 10 Harrison Street affected by the exceedance, but which concludes the overshadowing impact of the proposal does not reduce the compliance for any properties below 2 hours of solar access to their living room or private open space. As such, the written request asserts compliance with Objective 3B-2 of the Apartment Design Guide (ADG) that otherwise seeks overshadowing of neighbouring properties merely to be minimised. 3. The maintenance of privacy sought by objective (d) is achieved by generous setbacks and landscaping to the eastern and southern boundaries where neighbouring properties adjoin, which is a similar argument advanced in response to the means by which the development achieves compatibility with development at the interface between the R4 zone and the low density residential development in the R2 zone to the west and south of the site that is the focus of objective (e). 4. The scale and density of the development is in accordance with, and promotes the character of, the area where the desired future character of the Murdoch Neighbourhood and the North Cremorne Planning Area is understood to be primarily high density residential accommodation, and so achieves objective (f) of the height standard. 1. The written request also asserts the underlying object or purpose of the standard would be defeated or thwarted if compliance was required. However, as shown in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, at [22], it is sufficient to establish only one way that compliance is unreasonable or unnecessary. I accept and I am satisfied that the reasons advanced in the written request demonstrate that the proposal, notwithstanding the exceedance, is consistent with the objectives of the height standard. 2. Next, the written request advances the following environmental planning grounds it asserts are sufficient to justify the contravention: 1. The envelope substantially complies with the height standard to the northern and western elevations, and the exceedance is limited. 2. Where the greatest exceedance occurs, it is central to the building footprint, and has limited visibility from the public domain. 3. The parapet of the upper level, where the lesser exceedance occurs, is setback from the levels below and so provides greater building separation to neighbouring properties, maintains a minimum of 2 hours sunlight to properties located to the south on 21 June and is differentiated in material and finish that is said to achieve object (g) of s 1.3 EPA Act to promote good design and amenity of the built environment. 1. I am satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention depicted at [10], and so I am also satisfied that the written request has adequately addressed the matter required to be demonstrated by cl 4.6(3) of the NSLEP. 2. I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the NSLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R4 High Density Residential Zone. 3. Furthermore, the Respondent does not contend that the contravention of the development 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 NSLEP. 4. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified. 5. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R4 High Density Residential Zone at [8], for the reasons given in the request. 6. 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 NSLEP, and I find no grounds on which the Court should not uphold the height request. Other provisions of the North Sydney Local Environmental Plan 2013 1. The proposal comprises earthworks for which consent is required, pursuant to cl 6.10 of the NSLEP. On the basis of the Geotechnical Desktop Assessment prepared by Douglas Partners dated 26 August 2022, and the Civil Services drainage plans prepared by JHA dated 3 October 2023, I have considered those matters required to be considered at cl 6.10(3). State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the development application. While the development proposes the removal of a number of trees from the site, the Amended Landscape Plans prepared by Site Design Studio, dated 4 October 2023, show replacement planting proposed to maintain tree canopy and soften the built form. 2. Pursuant to the savings provisions at s 6.65 of Biodiversity SEPP, the former provisions of Ch 10 apply because of the date on which the DA was lodged. 3. The site is within the Sydney Harbour Catchment Map, cited at s 10.2 of the Biodiversity SEPP. However, the Site is not identified as being within the Foreshores and Waterways Area, is not a strategic foreshore site, is not a heritage item and is not within the wetlands protection area. Accordingly, only Part 10.1 of the Biodiversity SEPP applies. I accept that the provisions at Part 10.1 have been considered and the development application is consistent with these aims. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 1. Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires that the application be accompanied by a statement by a qualified designer, defined in the Dictionary at Sch 7 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of s 29(2) of the EPA Regulation, which include attestations similar in nature to the requirements of cl 28(2)(b) and (c) of the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65). 2. I am satisfied that the 'Architectural Design Verification Statement' prepared by Mr David Randerson (Arch Reg No 8542) dated 10 October 2023 addresses at length the design quality principles at Sch 1 of SEPP 65, and explains how the development addresses the objectives of Parts 3 and 4 of the ADG. State Environmental Planning Policy (Resilience and Hazards) 2021 1. I have considered whether the site is contaminated pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the statement by the Respondent, informed by Council's planning records, and the historical chronology set out in the Heritage Assessment prepared by Weir Philips dated October 2022, I accept there is no evidence to suggest the land is contaminated. The Site is therefore considered suitable for the proposed use given that contamination is unlikely, and no remediation measures have been identified as being necessary. State Environmental Planning Policy (Sustainable Buildings) 2022 1. A BASIX Certificate (Certificate No. 1344245M_02 dated 22 September 2023) accompanies the application, prepared by Integreco Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022. 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: 1. The DA was notified to the public from 18 November to 2 December 2022, and the DA as amended was provided to those who made public submissions, on 9 October 2023. 2. North Sydney Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 agrees to the Applicant amending Development Application DA 334/22 to rely on the following documents: Plan Nos. Issue Description Prepared by Dated DA103 B Demolition Plan DKO Architecture 3 October 2023 DA104 B Site Plan 3 October 2023 DA200 B Basement Plan 2 3 October 2023 DA201 B Basement Plan 1 3 October 2023 DA202 B Ground Floor Plan 3 October 2023 DA203 B Level 1 Plan 3 October 2023 DA204 B Level 2 Plan 3 October 2023 DA205 B Level 3 Plan 3 October 2023 DA206 B Roof Plan 3 October 2023 DA300 B North & East Elevations 3 October 2023 DA301 B South & West Elevations 3 October 2023 DA302 B Section 01 3 October 2023 DA303 B Section 02 3 October 2023 L-01 F Ground Floor Landscape Plan Site Design Studio 4 October 2023 L-02 F Level 1 Landscape Plan 4 October 2023 L-03 F Level 2 Landscape Plan 4 October 2023 L-04 F Level 3 Landscape Plan 4 October 2023 L-05 F Planting Schedules & Details 4 October 2023 C-DA100 P5 Civil Services – Ground Floor Drainage Plan JHA Engineers 3 October 2023 C-DA101 P5 Civil Services – Basement 01 Drainage Plan 3 October 2023 C-DA102 P5 Civil Services – Basement 02 Drainage Plan 3 October 2023 C-DA300 P5 Civil Services – Details Sheet 1 of 3 3 October 2023 C-DA301 P5 Civil Services – Details Sheet 2 of 3 3 October 2023 C-DA302 P5 Civil Services – Details Sheet 3 of 3 3 October 2023 Design Verification Statement DKO Architects 10 October 2023 B SEPP 65 Report DKO Architects 10 October 2023 Written Request to Vary the Building Height Control James Lovell and Associates Pty Ltd 25 October 2023 Revised Arboricultural Impact Assessment Lee Hancock Consulting 4 October 2023 BASIX Certificate 1344245M_02 Integreco Consulting Pty Ltd 22 September 2023 7 BASIX and NatHERS Specifications Integreco Consulting Pty Ltd 22 September 2023 NatHERS Certificate 0008131170 Integreco Consulting Pty Ltd 22 September 2023 Unit mix justification letter RayWhite 18 September 2023 1. The Applicant filed the above documents with the Court on 25 October 2023. 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, in a sum to be agreed or assessed. 2. The Appeal is upheld. 3. Development Application DA 334/22 for the demolition of existing structures and construction of a 4 storey residential flat building with 2 levels of basement parking at 53-55 Yeo Street Cremorne, is approved subject to conditions set out in Annexure A to this agreement. T Horton 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: 08 November 2023