Land and Environment Court New South Wales Medium Neutral Citation: Forte Burwood Developments Pty Ltd v Burwood Council [2024] NSWLEC 1205 Hearing dates: Conciliation conference held on 12 April 2024 Date of orders: 19 April 2024 Decision date: 19 April 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The cl 4.6 written request, prepared by Daintry Associates, dated 4 March 2024, pursuant to cl 4.6 of the Burwood Local Environmental Plan 2012 and seeking a variation to the height of buildings development standard, pursuant to cl 4.3, is upheld. (3) The appeal is upheld. (4) Development Application DA 10.2023.63.1, which seeks demolition of existing structures and construction of a mixed-use development containing 38 apartments in a residential flat building above 2 commercial units with basement car parking and landscaping on Lots 2 and 3 Deposited Plan 18191, also known as 50-52 Belmore Street, Burwood, is determined by the grant of consent, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – mixed use development – breach in height development standard – variation of development standard – conciliation conference – agreement between the parties – orders Legislation Cited: Burwood Local Environmental Plan 2012, cll 2.3, 4.3, 4.6, 6.5 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 State Environmental Planning Policy (Housing) 2021, Sch 9, s 147 Texts Cited: Burwood Development Control Plan 2013 Category: Principal judgment Parties: Forte Burwood Developments Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: J Wauchope (Solicitor) (Applicant) K Law (Solicitor) (Respondent) Solicitors: Dentons (Applicant) Matthews Folbigg (Respondent) File Number(s): 2023/327732 Publication restriction: Nil Judgment COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA 10.2023.63.1 by Burwood Council (the Council), which as amended, seeks demolition of existing structures and construction of a mixed-use development for 38 apartments in a residential flat building, above two commercial units, with basement car parking and landscaping on Lots 2 and 3 Deposited Plan 18191, also known as 50-52 Belmore Street, Burwood (the site). Background Development Application DA 10.2023.63.1 (the DA) was lodged with Council on 27 July 2023. The original DA was notified to residents, with one submission received. The DA was referred to the Council's Design Review Panel (the Panel). The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties' request, commenced without a site view, held before me as Duty Commissioner. Prior to the conciliation, the Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). Based on the amended application and the agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objector have also been considered in Council's merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA 10.2023.63.1, with conditions. It is noted that the DA will effect an amendment of an existing consent on the site granted for Development Application BD.2016.064, which was approved by Council on 8 February 2017. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 10.2023.63.1, subject to conditions in Annexure A. Jurisdictional prerequisites Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed: Burwood Local Environmental Plan 2012 (BLEP): Pursuant to cl 2.3 of the BLEP, the proposed residential development is situated over land zoned MU1 Mixed Use. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the BLEP, except there is a recognised breach in the cl 4.3 height development standard, that requires a cl 4.6 request for variation to be granted. The development standard described in cl 4.3 of the BLEP requires a maximum building height of 15 m. The DA proposes a maximum height of 28.13 m, representing an exceedance of up to 87.5 %. The DA relies on a cl 4.6 written request to vary the height of buildings development standard, pursuant to cl 4.6 of the BLEP. The height breach relates to the 6th storey, roof plant and lift overrun on the proposed building. The cl 4.6 written request provided to the Court explains that the portion of the building resulting in the non-compliance in the height standard does not result in a development that is incompatible with the desired, future character of the surrounding area, nor results in adverse amenity, including solar access and overshadowing to adjoining properties. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape, nor result in adverse bulk and scale impacts to adjoining developments. The proposed development provides a reasonable transition between existing and future (approved) adjoining developments, and although not relied on, is considered consistent with the intended changes to the height standard, described in a recent planning proposal. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard. The Court must be satisfied to grant consent to the application that the cl 4.6 written request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the BLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request seeking a variation of the height standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (MU1) described in cl 2.3 and the cl 4.3 height standard of the BLEP. The breach in the height standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development. I am satisfied that the requirements of cl 4.6 of the BLEP have been addressed, and that a variation in the cl 4.3 of the BLEP height of buildings development standard should be granted. 1. The requirements of design excellence, as described in cl 6.5 of the BLEP, are relevant for consideration of the proposed development, as it exceeds three stories in a MU1 zone. The DA relies on a Design Excellence Statement and Design Verification Report, prepared by LYMT, dated 26 March 2024 and 28 March 2024, respectively. The proposed development is assessed as follows: 1. seeks to relate to the existing locality and context, including its relationship to the public domain, with respect to proposed building form, scale, materials and detailing, thereby addressing cll 6.5(4)(a), (b) and (h). 2. seeks to relate to the adjoining heritage listed church and existing residential flat buildings in the streetscape, through responsive height of podium, form of façade, setbacks and materials. There are no adverse impacts to view corridors and landmark locations, thereby addressing cll 6.5(4)(c) and (d). 3. access has been provided by relying on a dual access driveway for vehicles, with a separated pedestrian access, that also ensures there is a safe approach to public transport, satisfying cll 6.5(4)(e) and (f). 4. a mix of commercial and residential uses are proposed that have access to separated communal space areas, addressing cl 6.5(4)(g). 5. an ecological sustainable design is adopted, including solar panels and water capture, to support a low energy/passive design building, addressing cl 6.5(4)(i). State Environmental Planning Policy (Housing) 2021 (SEPP Housing): The DA proposes a development for residential apartments, that engages consideration of s 147 of the SEPP Housing. 1. Pursuant to ss 147(1)(a) and (b) of SEPP Housing, the DA relies on a Design Excellence Statement and Design Verification Report addressing the Apartment Design Guide requirements, prepared by LYMT, dated 26 March 2024 and 28 March 2024, respectively. The DA is supported by a NATHERS Certificate, V4.4.1.5, dated 28 March 2024. The design quality principles established in Sch 9, SEPP Housing have been considered and are addressed by the amended design. Pursuant to s 147(1)(c) of SEPP Housing, the DA was submitted for advice of the Panel, provided on 21 August 2023, and which has been considered in the amended design. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. The DA relies on the Statement of Environmental Effects. prepared by Daintry Associates Pty Ltd, dated 17 July 2023. Based on the existing use of the site as residential and documents that support the DA, the Council has appropriately considered that the site is not contaminated, which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6 of the SEPP Resilience. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: A BASIX Certificate (1359008M_02), issued on 25 August 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent. Burwood Development Control Plan 2013 (BDCP): The original DA was publicly notified in accordance with the BDCP, with one submission received. The relevant requirements of the WDCP have been considered in Council's merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent. Pursuant to s 23 of the EPA Reg, the Court is satisfied with the provision of consent from the relevant landowner. Grant of consent Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA 10.2023.63.1 should be granted consent. 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. The Court notes that: Burwood Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 10.2023.63.1 as follows: Item Document Plans 1. Architectural Plans, prepared by LYMT, dated March 2024. 2. Landscape Plans, prepared by Landscape Architecture Pty Ltd, Revision E, dated 27 March 2024. 3. Stormwater Concept Plans, prepared by CIVIL & STORMWATER ENGINEERING SERVICES PTY LTD, dated 1 February 2024 and 26 March 2024. Documents / Reports 4. Clause 4.6 Objection, prepared by Daintry Associates, dated 4 March 2024 5. Amended Waste Management Plan, prepared by Dickens Solutions Pty Ltd, dated 28 March 2024. 6. CPTED Report, prepared by Haskew de Chalain, dated 4 March 2024 7. NatHERS Certificate, V4.4.1.5 (3.21), dated 28 March 2024 8. BASIX Certificate No: 1299754M_11, dated 28 March 2024 The Applicant has filed the amendments to the Development Application DA 10.2023.63.1 with the Court on 8 April 2024. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. The cl 4.6 written request, prepared by Daintry Associates, dated 4 March 2024, pursuant to cl 4.6 of the Burwood Local Environmental Plan 2012 and seeking a variation to the height of buildings development standard, pursuant to cl 4.3, is upheld. The appeal is upheld. Development Application DA 10.2023.63.1, which seeks demolition of existing structures and construction of a mixed-use development containing 38 apartments in a residential flat building above 2 commercial units with basement car parking and landscaping on Lots 2 and 3 Deposited Plan 18191, also known as 50-52 Belmore Street, Burwood, is determined by the grant of consent, subject to the conditions in Annexure A. Sarah Bish Commissioner of the Court ********** 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: 19 April 2024