Land and Environment Court New South Wales Medium Neutral Citation: Reddall Street Pty Limited as Trustee for the Reddall Street Trust v Northern Beaches Council [2024] NSWLEC 1149 Hearing dates: Conciliation conference on 16 February 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The Applicant's clause 4.6 written request dated 5 March 2024 to vary the height of building standard at cl 4.3 of the Manly Local Environmental Plan 2013, is upheld. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away by the amendment of the development application in the agreed amount of $1,500.00. (3) The appeal is upheld. (4) Development consent is granted to development application DA2023/0299, as amended, for the demolition works, subdivision of three lots into five, construction of five new dwelling houses with swimming pools, associated landscaping and parking at 29, 31 and 35 Reddall Street, Manly, and tree removal on the adjacent reserve, subject to the conditions of consent at Annexure B. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – subdivision – construction of dwelling houses – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, Pt 7 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 Manly Local Environmental Plan 2014, cll 4.1, 4.3, 4.4, 6.1, 6.2, 6.4, 6.5, 6.8, 6.9, 6.12 State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 2.12, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.48 Texts Cited: Northern Beaches Community Participation Plan Category: Principal judgment Parties: Reddall Street Pty Limited as Trustee for the Reddall Street Trust (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: S Simington (Solicitor) (Applicant) J Simpson (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Northern Beaches Council (Respondent) File Number(s): 2023/250690 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, Reddall Street Pty Limited (ACN 646644028) as Trustee for the Reddall Street Trust, seeks consent for the demolition of existing buildings, subdivision of three lots into five, and construction of five new dwelling houses with swimming pools, associated landscaping and parking, and tree removal at 29, 31 and 35 Reddall Street, Manly, Lots 82, 83 and 84 DP8076 (the subject site) and the adjacent Council reserve (the adjacent reserve). These Class 1 proceedings arise from the deemed refusal, by Northern Beaches Council of their development application DA2023/0299. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 February 2024. I presided over the conciliation conference, after which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one 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, however, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points. 5. The application was notified in accordance with the Northern Beaches Community Participation Plan. A total of 37 written submissions were made, and 3 of those made oral submissions at the commencement of these proceedings. The parties submit, and I accept, that the issues raised in these submissions have been adequately considered, and where relevant, incorporated into the amended application that is now before the Court. 6. The development application was made with the written consent of the landowner for the subject site, The Trustees of the Roman Catholic Church for the Archdiocese of Sydney. Further, as per the agreement between the parties in this matter, the Council consents to the proposed tree removal works on the road reserve for which they are the landowner. 7. Pursuant to the Manly Local Environmental Plan 2013 (MLEP), the subject site is zoned R1 General Residential, within which development for the purpose of dwelling houses is permitted with consent. The proposed development is consistent with the objectives of this zone. 8. The adjacent reserve is zoned RE1 Public Recreation. The proposed works on the Council Reserve are limited to tree removal, and no construction or other development is proposed on this land. 9. Pursuant to MLEP cl 4.1, the subject site is identified as having a minimum lot size of 250m2. All five proposed lots are greater than 250m2. 10. MLEP cl 4.3 establishes a maximum building height control of 8.5m to the subject site, which four of the five proposed dwellings do not comply with. 11. Four of the proposed dwellings exceed the height control in the following ways: 1. Dwelling house nominated as 29 Reddall Street: 1. A portion of the pitched roof breaches the height standard by up to 310mm (3.6%). 2. The north-eastern edge of the flat roof breaches the height standard by 720mm or 8.4%. 3. A portion of the vergola structure breaches the height standard by 660mm or 7%. 1. Dwelling house nominated as 31 Reddall Street: 1. The south-eastern edge of the roof breaches the height standard by up to 1.197m (14%) 1. Dwelling house nominated as 9 College Street: 1. A small portion of the pitched roof form exceeds the height standard by a maximum of 289mm or 3.4%. 1. Dwelling house nominated as 35 Reddall Street 1. A portion of the flat roof breaches the height standard by 320mm or 3.7%. 2. A portion of the vergola structure breaches the height standard by 70mm or 0.8%. 1. As four of the five dwellings breach the 8.5m height control, cl 4.6(3) of the MLEP requires a written request to justify the contravention of the height of building development standard. This written request must demonstrate that compliance with the 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. To that end, the Applicant has submitted a written request prepared by BBF Town Planners, dated 5 March 2024 (the written request). Pursuant to MLEP cl 4.6, I am satisfied that: 1. The written request demonstrates that compliance with the height of buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the Height of Buildings development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties. 2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the Height of Buildings standard: 1. is the result of existing excavation across the land for existing structures including a swimming pool; and 2. is minor in nature in both qualitative and quantitative terms, and does not result in any unreasonable impacts on the amenity of adjoining sites or to the wider public domain. 1. The contravention is therefore justified by the impact of existing excavation, the lack of adverse impact on neighbouring residents, and by the breach of the standard being minor in nature. 2. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. MLEP cl 4.4 prescribes a maximum FSR of 0.6:1 to the subject site, which is not exceeded by the proposed development as demonstrated in the Statement of Environmental Effects for the Class 1 Application. 2. The parties submit, and I accept, that the subject site is not within a flood planning area. 3. Pursuant to MLEP cl 6.1, the subject site is mapped as Class 5 Acid Sulfate Soils, however the development does not involve works within 500 metres of any Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum. Accordingly, the parties submit, and I accept, that the proposed development meets the requirements of MLEP cl 6.1. 4. Based on the parties' submissions and the Geotechnical Report by Douglas Partners dated February 2023, I am satisfied that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, and that accordingly, the provisions of MLEP cl 6.2 are met. 5. From the parties' submissions and the stormwater management plans by ACOR Consultants, revision M dated 26 February 2024 (the stormwater management plans), I accept that the provisions of MLEP cl 6.4 are met with the proposed development and that the impacts of urban stormwater on the subject site, adjacent properties, native bushland and receiving waters is minimised. 6. The parties submit, and I accept, that the matters pertaining to terrestrial biodiversity listed in MLEP cl 6.5(3) have been adequately considered, and that subject to application of the relevant conditions, the development is designed, sited and will be managed to avoid any significant adverse environmental impact and meets the requirements of MLEP cl 6.5. 7. MLEP cl 6.8 requires certain matters pertaining to landslide risk to be considered. Based on the parties' submission and the amended stormwater management plans, I accept that the development will appropriately manage landslide risk in accordance with the provisions of this clause. 8. The subject sites are located within a Foreshore Scenic Protection Area pursuant to MLEP cl 6.9. Based on the parties' submissions and the information contained in the Development Assessment Report dated 15 November 2023, I accept that the matters listed in subcl 6.9(3) have been considered, and the proposed development does not offend this control. 9. The parties submit, and I accept, that all relevant essential services are available to the subject site and that the requirements of MLEP cl 6.12 are met. 10. The development application is accompanied by BASIX certificates for each proposed dwelling. 11. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties' submission, I accept that the subject site has been historically used for residential purposes and there are no known actions that may have led to contamination of this land. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the subject site is suitable for its intended purpose. 12. Additionally, as the subject site is located in the Coastal Use Area, the provisions of ss 2.11 and 2.12 of the SEPP Resilience and Hazards apply to the proposed development. Accordingly, based on the parties' submission and the information contained in the Development Assessment Report, I accept that the development is designed, sited and will be managed to avoid an adverse impact on any of the matters identified in s 2.11(1)(a), and that the matters identified for consideration in this clause have been addressed. Further, from the parties' submissions, I accept that the proposed development is not likely to cause increased risk of coastal hazards on the subject site or other land, in accordance with the requirements of s 2.12 of the SEPP. 13. Pursuant to the requirements of Pt 7 of the Biodiversity Conservation Act 2016, the parties submit, and I accept, that the Flora and Fauna Impact Assessment prepared by SIA Ecological & Environmental Planning Pty Ltd demonstrates that the proposed development would have no significant impact on threatened flora or fauna. Subsequently, no Biodiversity Development Assessment Report is required for this development. 14. Pursuant to the requirements of Ch 2, s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the parties submit and I accept that the proposal was referred to Ausgrid, who have provided a response stating that the proposal is acceptable, subject to recommendations. These recommendations have been incorporated into the conditions of consent at Annexure B. 15. For these reasons, 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. 16. As the parties' decision is one 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. 17. The Court notes: 1. The Respondent has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant's amendment of the subject development application DA2023/0299 to substitute the plans and documents as outlined in Annexure A. 1. The Court orders: 1. The Applicant's clause 4.6 written request dated 5 March 2024 to vary the height of building standard at cl 4.3 of the Manly Local Environmental Plan 2013, is upheld. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away by the amendment of the development application in the agreed amount of $1,500.00. 3. The appeal is upheld. 4. Development consent is granted to development application DA2023/0299, as amended, for the demolition works, subdivision of three lots into five, construction of five new dwelling houses with swimming pools, associated landscaping and parking at 29, 31 and 35 Reddall Street, Manly, and tree removal on the adjacent reserve, subject to the conditions of consent at Annexure B. E Washington Acting Commissioner of the Court Annexure A Annexure B ********** Amendments 05 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), correction is made to typographical errors at [1], [9], [10], [11], [12] and [17] of the judgment. 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: 05 April 2024