Land and Environment Court New South Wales Medium Neutral Citation: Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173 Hearing dates: Conciliation conference on 16 October 2023; 15 November 2023; 13 December 2023; 17 January 2024; 6, 13 and 23 February 2024; 8, 22 and 28 March 2024; 8 April 2024 Date of orders: 11 April 2024 Decision date: 11 April 2024 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away by the amendment of the development application in accordance with the documents set out in Annexure A, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The applicant's written request prepared by Planning Ingenuity dated 13 February 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to vary the maximum building height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld. (3) The appeal is upheld. (4) Development application no. DA88/23, as amended, for the demolition of the existing residential flat building, lot consolidation and construction of a new residential flat building, and alterations and additions to an existing residential flat building at 75-77 Kirribilli Avenue, Kirribilli, is determined by the grant of consent subject to the conditions at Annexure B. Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2021, ss 7, 23, 27, 29, 35B, 38; Pts 3, 4; Sch 3; Sch 6, s 27 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013, cll 2.1, 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.10, 6.12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6; Pts 6.2, 6.3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 144, 147; Ch 4; Sch 7A, s 8 State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021, Appendix 1, Pt 1 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11; Ch 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2 State Environmental Planning Policy Amendment (Housing) 2023 Texts Cited: Apartment Design Guide North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Avenue 75 Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) K Gerathy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/167010 Publication restriction: Nil JUDGMENT 1. These proceedings arise following North Sydney Council's refusal of a development application (DA88/23) (DA) which seeks consent for lot consolidation, the partial demolition of existing structures, alterations and additions to an existing residential flat building at 77 Kirribilli Avenue and construction of a new residential flat building at 75 Kirribilli Avenue, with basement parking and landscaping works. 2. The site is legally described as SP 10459 and SP 13646, otherwise known as 75 and 77 Kirribilli Avenue, Kirribilli, respectively. 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 October 2023. I presided over the conciliation conference. 4. During that process the applicant agreed to make the following amendments to the DA: 1. 75 Kirribilli Avenue: 1. Delete level 6; 2. Provide a flat roof; 3. Pull back western (side) setback to existing; 4. Pull back northern (front) setback to existing; 5. Amended façade design; 6. Basement footprint reduced; 1. 77 Kirribilli Avenue: 1. Increased retention of existing façade; 2. Retain existing pitch/eves to a grid line where the staircase is on the level below before changing to a different roof volume beyond towards the harbour (south), in a non-pitched roof; 1. Both sites: 1. Retention of existing front fence; and 2. Communal garden provided. 1. Between 7 and 21 March 2024, the DA, as amended, was informally renotified to those persons who provided a response in respect of the earlier/initial notification of the DA. A total of ten submissions were received. The parties submit that the concerns raised in the submissions have been satisfactorily addressed by the amended DA. 2. The amendments have resolved the contentions raised in the Council's Statement of Facts and Contentions (SOFC) and as such the parties have lodged an agreement setting out the terms of a decision in the proceedings that would be acceptable to them. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court's power to make the proposed final orders are addressed in the parties' joint jurisdictional submission annexed to their written agreement. 4. In making the orders to give effect to the agreement between the parties, I am not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act). However, I am satisfied, on the evidence and the submissions of the parties that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following. Environmental Planning and Assessment Regulation 2021 (EPA Reg) 1. The parties are satisfied that there are no provisions of Pts 3 or 4 of the EPA Reg which would preclude the granting of consent. 2. In particular, and without limitation: 1. The requirements of s 27 of the EPA Reg regarding BASIX development have been satisfied by the updated BASIX Assessment for the DA. 2. The requirements of s 29 of the EPA Reg regarding residential apartment development have been satisfied by the provision of an amended Design Verification Statement and ADG Compliance Statement prepared by EM BE CE dated March 2024. 3. The requirements of s 35B of the EPA Reg regarding additional requirements for development applications involving contravention of development standards do not apply to this DA, as it was made before 1 November 2023 (EPA Reg Sch 6 s 27). 1. The parties agree that, pursuant to s 23(1) of the EPA Reg, the DA was supported by satisfactory documents evincing the written consent of the owners of both lots comprising the site. 2. The parties agree that the DA does not comprise designated development for the purposes of s 7 of, and Sch 3 to, the EPA Reg. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) 1. As the DA was submitted on the NSW Planning Portal but not finally determined before 1 October 2023, the BASIX SEPP continues to apply (State Environmental Planning Policy (Sustainable Buildings) 2022 ss 4.1. and 4.2). 2. In compliance with the relevant requirements under the BASIX SEPP, the applicant has provided an updated BASIX Assessment for the DA, as amended. State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) Chapter 2 – Coastal Management 1. The site is identified as being within the Coastal Environment Area and the Coastal Use Area. 2. Sections 2.10 and 2.11 of the RH SEPP require that a consent authority must not grant consent to a development within a Coastal Environment or Use Area unless certain matters have been considered. 3. The Statement of Environmental Effects prepared by Planning Ingenuity dated 17 March 2023 (SEE) at pp 27-30 provides a detailed assessment of the relevant matters set out within ss 2.10 and 2.11 and concludes that the proposal is considered acceptable pursuant to Ch 2 of the RH SEPP. 4. The parties submit and I accept that the matters set out in ss 2.10 and 2.11 have been properly considered and addressed by the DA, as amended. Chapter 4 – Remediation of Land 1. Section 4.6 of the RH SEPP requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. 2. The SEE at p 30 confirms that the site has historically been used for residential purposes only and is unlikely to be contaminated. The parties submit and I accept that the site is not contaminated and that no change of use is proposed for the purposes of s 4.6 of the RH SEPP. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) 1. The DA is a development application made, but not determined, on or before 14 December 2023. Section 8(2A) of Sch 7A to the Housing SEPP provides that Ch 4 of the Housing SEPP (inserted by the State Environmental Planning Policy Amendment (Housing) 2023) applies to the DA, notwithstanding s 8(1)(a) of Sch 7A to the Housing SEPP. The DA comprises development for the purposes of a residential flat building which also meets the other specifications set out in s 144 of the Housing SEPP. Pursuant to s 144(2)(a) of the Housing SEPP. 2. Section 147(1) of the Housing SEPP requires a consent authority to take into consideration the following prior to determining a development application: (a) the quality of the design of the development, evaluated in accordance with the design quality principles for residential apartment development set out in Schedule 9, (b) the Apartment Design Guide, and (c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel. 1. In accordance with s 147(1) of the Housing SEPP: 1. The applicant has prepared an amended Design Verification Statement and ADG Compliance Statement prepared by EM BE CE dated March 2024. This document assesses and supports the form of the proposed development against the design quality principles for residential apartment development and the Apartment Design Guide. 2. On 9 May 2023, the DA was considered by the Council's Design Excellence Panel. The Panel's comments are set out in par 40 of the Council's SOFAC. As a consequence of the parties' agreement that the Council's contentions have been resolved, the parties submit and I accept that the advice from the Design Review Excellence Panel has been given consideration. 1. On that basis, the parties submit and I accept that the development demonstrates that adequate regard has been given to the design quality principles for residential apartment development and the objectives specified in the Apartment Design Guide for the relevant design criteria. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) Chapter 2 – Vegetation in Non-Rural Areas 1. Chapter 2 of the BC SEPP relates to vegetation in non-rural areas which includes the North Sydney Local Government Area and land in the R4 High Density Residential zone. 2. The DA proposes the removal of trees and is therefore accompanied by an Amended Aboricultural Assessment Report prepared Dr Treegood dated September 2023 and an updated Arborist report prepared by Dr Treegood dated October 2023. 3. The Council has considered the reports and is satisfied that the trees proposed to be removed are acceptable and is consistent with local planning objectives, having regard to the replacement planting as proposed in the landscaping strategy for the site. Conditions of consent have been imposed requiring the development to implement the landscaping as shown in the landscape plans (see Conditions A1, C33, C53, G1, G21, G24 and I5). 4. Having reviewed the documents comprising the DA, as amended, the parties submit and I accept that the proposed development is consistent with Ch 2 of the BC SEPP. Chapter 6 – Water Catchments 1. Chapter 6 of the BC SEPP provides aims and controls with respect to the Sydney Harbour Catchment, among others. 2. The site is identified as being within the Sydney Harbour Catchment Map and the Foreshores and Waterways Map. Accordingly, Pts 6.2 and 6.3 of the BC SEPP apply to the site. 3. In relation to those sections, the parties confirm: 1. The proposal will have no impact to any publicly accessible area and is designed to protect the enjoyment of the Sydney Harbour as a public resource, owned by the public, to be protected for the public good; 2. The proposed development is not likely to have an adverse environmental impact; 3. The amended Stormwater Plans prepared by Integrated Group Services dated 16 March 2023, include appropriate controls for treatment and control of stormwater run-off; and 4. The DA, as amended, will have a neutral or beneficial effect in relation to the quality of water entering a natural waterbody, as supported by the Stormwater Management Report prepared by Integrated Group Services dated 14 July 2023 and Stormwater Quality Report prepared by Integrated Group Services dated 14 November 2023. 1. Accordingly, the parties submit and I accept that the proposed development is consistent with Ch 6 of the BC SEPP. State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021 (Precincts SEPP) 1. The site is located within the Sydney Opera House Buffer Zone and is therefore subject to the provisions of Precincts SEPP, in particular Appendix 1. 2. Part 1 of Appendix 1 provides a list of matters that must be considered when granting consent to certain works within the Sydney Opera House Buffer Zone. 3. In relation to these matters, the parties confirm that: 1. The proposal will have no impact on the heritage value on the Sydney Opera House (see Heritage Impact Statement prepared by Urbis dated 16 March 2023); 2. The proposal will preserve views and vistas between the Sydney Opera House and public places within the buffer zone (see Visual Impact Assessment prepared by Urbaine Design Group dated 18 January 2024); and 3. The proposal will avoid diminution of the visual prominence of the Sydney Opera House when views from other places in the buffer zone. North Sydney Local Environmental Plan 2013 (NSLEP) Clause 2.1 (Land Use Zones) 1. The site is zoned R4 High Density Residential. Clause 2.3 (Zone objectives and Land Use Table) 1. Pursuant to cl 2.3 of the NSLEP, the consent authority is required to have regard to the zone objectives. The proposed use as a 'residential flat building' is permissible with consent in the zone and is consistent with the objectives of the zone. Clause 4.3 (Height of buildings) 1. Pursuant to cl 4.3 of the NSLEP, the site is subject to a maximum building height of 12m. The DA, as amended, proposes a maximum height of 15.5m for the new residential flat building at 75 Kirribilli Avenue and 12.9m for the existing building at 77 Kirribilli Avenue. The maximum building height equates to a numerical variation of 3.5m and a percentage variation of 29.2%. Noting that the maximum height relates to the roof of 75 Kirribilli Avenue, as measured from the existing excavated subfloor level. A variation is also requested for those parts of the proposed buildings at 75 and 77 Kirribilli Avenue which exceed the 12m height of building control as indicated in Figure 2 of the written request. 2. The applicant relies on the amended cl 4.6 written request prepared by Planning Ingenuity dated 13 February 2024 to support a variation to the development standard in this case. The written request identifies that the topography is a site-specific reason for the breach of the height control. It has a fall from the northern (front) to the southern (rear) boundary of approximately 4.8m within the eastern portion of the site and 7.1m within the western portion. The undulating topography is the result of a combination of natural rock outcrops and variable natural ground level as well as excavation beneath the existing buildings, retaining walls and filling and levelling with the front and rear setbacks. 3. The parties agree that the written request is well founded for the following reasons: 1. the proposal satisfies the objectives of the height control notwithstanding the variation; and 2. there are sufficient planning grounds to justify contravening the building height control. 1. In that circumstance, the parties submit that compliance with the development standard is unreasonable or unnecessary and that the proposal is in the public interest. Having regard to the parties' agreement that the variation is justified in this case for the reasons outlined in the written request, I uphold the written request. Clause 4.4 (Floor space ratio (FSR)) 1. Pursuant to cl 4.4, the site is not subject to a maximum FSR. Clause 5.10 (Heritage) 1. The site is located within the Kirribilli Heritage Conservation Area and the existing buildings are identified as 'neutral items'. The site is also located within the vicinity of a number of heritage items, including Mary Booth Lookout Reserve, the Sydney Harbour Bridge and the Sydney Opera House. The DA is supported by a Heritage Impact Statement prepared by Urbis dated 16 March 2023 which confirms that there will not be any impact on the heritage items in the vicinity of the site. The proposed amendments serve to further improve the relationship of the site with the surrounding heritage context. Conditions of consent have also been imposed to implement heritage conservation and management recommendations (see Conditions A1, A4, C1, C12, C13, D1, E1, and E25). Accordingly, the parties submit and I accept that the matters set out in cl 5.10 of the NSLEP have been addressed. Clause 5.21 (Flood planning) 1. The site is not identified in the flood planning area. Clause 6.10 (Earthworks) 1. The proposed earthworks are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The DA was accompanied by a Geotechnical Investigation prepared by Douglas Partners dated 15 March 2024 and a Construction Methodology prepared by SDA Structures dated 19 December 2023. These reports provide recommendations for design and construction to minimise impacts of excavation. The Council has reviewed the reports and is satisfied with the recommendations. The parties submit and I accept that the matters set out in this clause have been considered and that appropriate measures to avoid or minimise the impacts of the development have been imposed. Clause 6.12 (Residential flat buildings) 1. Clause 6.12 of the NSLEP requires that development for a residential flat building must only be granted if adjoining land which contains a single dwelling, dual occupancy or semi-detached dwelling in an R4 High Density Residential Zone is at least 900m² or on land that can be developed for the purposes of a residential flat building. The adjoining properties at 79 Kirribilli Avenue, 2 Waruda Street and 73 Kirribilli Avenue all contain existing residential flat buildings. Therefore, this clause is satisfied. Deferred commencement condition relating to stormwater easements 1. 75 Kirribilli Avenue currently benefits from an easement for drainage, being dealing number D986168, which burdens the adjoining lots known as 5/21555, 6/2155 and 7/21555 (adjoining lots). These adjoining lots are all owned by the Council, and form part of 'Mary Booth Reserve', which is zoned RE1 Public Recreation and classified as 'community land' pursuant to the NSLEP. 2. The conditions of consent propose a deferred commencement condition requiring submission to the Council of suitable documentary evidence demonstrating that the site benefits from a registered drainage easement(s) over the adjoining lots. 3. The DA does not propose any stormwater works outside of the site's boundary. The Amended Stormwater Plans, mainly SW101 (Rev 6), demonstrate that no further stormwater infrastructure will need to be installed within the easement area to accommodate the development. In other words, the existing stormwater infrastructure is sufficient for the purposes of the proposed development. 4. The imposition of the Deferred Commencement Condition requiring the creation of the easement(s) over the adjoining lots is considered to appropriate by the parties and: 1. compliant with Council's Stormwater Specification, Design and Development Guidelines; and 2. reflective of the existing easement. 1. Deferred commencement conditions may be imposed pursuant to s 4.16(3) of the EPA Act. North Sydney Development Control Plan 2013 (NSDCP) 1. The provisions of the NSDCP that are of relevance have been taken into account in assessing the DA, as amended. 2. The parties agree that the amended plans demonstrate a satisfactory planning outcome when measured against the applicable zoning objectives and NSDCP controls and objectives. Conclusion and orders 1. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. That North Sydney Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending DA88/23 in accordance with the documents set out in Annexure A. 2. The amended application was filed with the Court on 8 April 2024. 1. The Court orders: 1. The applicant is to pay the respondent's costs thrown away by the amendment of the development application in accordance with the documents set out in Annexure A, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The applicant's written request prepared by Planning Ingenuity dated 13 February 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to vary the maximum building height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld. 3. The appeal is upheld. 4. Development application no. DA88/23, as amended, for the demolition of the existing residential flat building, lot consolidation and construction of a new residential flat building, and alterations and additions to an existing residential flat building at 75-77 Kirribilli Avenue, Kirribilli, is determined by the grant of consent subject to the conditions at Annexure B. ……..…………….. S Dixon Senior Commissioner of the Court Annexure A (121350, pdf) Annexure B (528382, pdf) ********** 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: 11 April 2024