Land and Environment Court New South Wales Medium Neutral Citation: St Hilliers Holding Pty Ltd v Cumberland Council [2024] NSWLEC 1354 Hearing dates: Conciliation conference held on 12 June 2024 Date of orders: 25 June 2024 Decision date: 25 June 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The cl 4.6 written request, prepared by Planning Ingenuity, dated 17 June 2024, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 and seeking a variation to the height of buildings development standard, pursuant to cl 4.3, is upheld. (2) The appeal is upheld. (3) Development Application DA 2023/0588, which seeks demolition of existing structures and construction of a 6-storey co-living housing development for 88 rooms, with basement car parking and landscaping at Lot 11 Deposited Plan (DP) 655964 and Lot 1 DP 1135754, also known as 98-100 St Hilliers Road, Auburn, is determined by the grant of consent, subject to the conditions in Annexure A. (4) 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 as a result of the amended application in the agreed amount of $2,500.00 within 28 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – co-living housing development – breach in height development standard – variation of development standard – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Cumberland Local Environmental Plan 2021, cll 2.3, 4.3, 4.6, 5.21, 6.1, 6.2 Environmental Planning and Assessment Regulation 2021, ss 23, 38 (State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.1 State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69, 70 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122 Texts Cited: Cumberland Development Control Plan 2021 Category: Principal judgment Parties: St Hilliers Holding Pty Ltd (First Applicant) JH Capital Auburn Pty Ltd (Second Applicant) Cumberland Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicants) C McFadzean (Solicitor) (Respondent) Solicitors: Mckees Legal Solutions (Applicants) Cumberland Council (Respondent) File Number(s): 2023/459725 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA 2023/0588 by Cumberland Council (the Council), which as amended, seeks demolition of existing structures and construction of a six-storey co-living housing development for 88 rooms, with basement car parking and landscaping at Lot 11 Deposited Plan (DP) 655964 and Lot 1 DP 1135754, also known as 98-100 St Hilliers Road, Auburn (the site). Background 1. Development Application DA 2023/0588 (the DA) was lodged with Council on 28 September 2023. The original DA was notified to residents, with no submissions received. The DA was referred to Ausgrid, Transport for NSW (TfNSW), NSW Police and Sydney Water. 2. 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). 3. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which commenced with a site view. 4. At 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). 5. 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 agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA 2023/0588, with conditions. 6. 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 2023/0588, subject to conditions in Annexure A. Jurisdictional prerequisites 1. 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: 1. Cumberland Local Environmental Plan 2021 (CLEP): 1. Pursuant to cl 2.3 of the CLEP, the proposed residential development is situated over land zoned R4 High Density Residential. 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 CLEP, 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. 2. The development standard described in cl 4.3 of the CLEP requires a maximum building height of 18 m. The DA proposes a maximum height of 19.35 m, representing an exceedance of up to 7.5 %. 3. 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 CLEP. 4. The height breach relates to the roof form of the 6th storey 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. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard. 5. 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 CLEP. 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 (R4) described in cl 2.3 and the cl 4.3 height standard of the CLEP. 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. 6. I am satisfied that the requirements of cl 4.6 of the CLEP have been addressed, and that a variation in the cl 4.3 of the CLEP height of buildings development standard should be granted. 7. The site is located within a flood planning area, as described in cl 5.21 of the CLEP. The DA relies on a Flood Study Report, prepared by JCO Consultants, dated 22 September 2023. The proposed development is assessed as sufficiently addressing the requirements of cl 5.21. 8. The proposed development seeks excavation for a basement and the site is located within an area mapped as having Class 5 Acid Sulfate Soils (ASS), pursuant to cl 6.1 of the CLEP. The DA relies on Geotechnical Report, prepared by Stantec, dated 15 June 2023. There is no ASS identified on the site and no predicted changes to soil stability and drainage patterns, therefore the requirements of cll 6.1 and 6.2 are sufficiently addressed. 1. State Environmental Planning Policy (Housing) 2021 (SEPP Housing): 1. The DA proposes a development for co-living that is permissible with consent, pursuant to s 67 of the SEPP Housing. 2. The minimum standards described in ss 68 and 69 of the SEPP Housing are sufficiently addressed by the design of the proposed development. Section 70 is also addressed. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity): 1. The site is located within the Sydney Harbour Catchment, pursuant to s 6.1 of the SEPP Biodiversity. The DA relies on stormwater management plans, prepared by JCO Consultants Pty Ltd, and dated 5 June 2024. The relevant requirements of the SEPP Biodiversity are addressed to protect the water and environment of the Sydney Harbour Catchment. 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport): 1. The site has frontage to a classified road, engaging s 2.119 of the SEPP Transport. The DA relies on an Acoustic Report, prepared by Acoustic Consulting Engineers, dated 1 March 2024 and proposed building design to address noise associated with the residential use of the development and proximity to a classified road. 2. The DA also relies on a Traffic Report, prepared by Genesis Traffic, dated 5 June 2024. The site only has frontage to the classified road and in consideration of the DA, TfNSW do not object. The DA by design and conditions of consent address the requirements of s 2.122 of the SEPP Transport. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. 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 Preliminary Site Investigation Report, prepared by Stantec, dated 15 June 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. 1. Cumberland Development Control Plan 2021 (CDCP): 1. The original DA was publicly notified in accordance with the CDCP, with no submissions received. 2. The relevant requirements of the CDCP 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. 1. Pursuant to s 23 of the EPA Reg, the Court is satisfied with the provision of consent from the relevant landowner. Grant of consent 1. 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. 2. 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. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA 2023/0588 should be granted consent. 4. 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. 5. The Court notes that: 1. Cumberland Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the Development Application DA 2023/0588 in accordance with the plans and documents listed below: Reference/Dwg No Title/Description Prepared By Date/s 004 Rev 11 Demolition Plan Taxco Design 6 April 2024 005 Rev 11 Site Plan 006 REV 11 Streetscape Analysis 007 REV 11 Site Analysis 008 REV 11 GFA Calculations 010 REV 11 Landscape & Deep Soil Calculations 011 REV 11 CLA Calculations 012 REV 11 COS Calculations 013 REV 11 Shadow Diagrams 014 REV 11 Solar Access 3D 015 REV 11 Evacuation Plan 016 REV Height Limit Diagram 101 Rev 11 Basement Plan 102 Rev 11 Ground Floor Plan 103 Rev 11 Level 01 104 Rev 11 Level 02 105 Rev 11 Level 03 106 Rev 11 Level 04 107 Rev 11 Level 05 108 Rev 11 Roof Plan 201 Rev 11 North & South Elevations 202 Rev 11 East & West Elevations 301 Rev 11 Sections S01 302 Rev 11 Sections S02 303 Rev 11 Ramp Section S03 401 Rev 11 External Windows & Door Schedule 402 Rev 11 North & South Material Schedule 403 Rev 11 East & West Material Schedule 404 Rev 11 Typical Kitchen Elevation DA-SW100, Revision 4 Stormwater Layout Plan - Cover Sheet JCO Consultants Pty Ltd 5 June 2024 DA-SW101, Revision 4 General Notes and Specifications DA-SW200, Revision 4 Stormwater Concept Design - Basement Plan DA-SW201, Revision 4 Stormwater Concept Design – Ground Floor DA-SW202, Revision 4 Stormwater Concept Design – Roof Plan DA-SW300, Revision 4 Stormwater Concept Design – Details Sheet – Sheet 1 of 2 DA-SW301, Revision 4 Stormwater Concept Design – Details Sheet – Sheet 2 of 2 DA-SW400, Revision 4 Stormwater Concept Design – OSD Catchment Plan DA-SW600, Revision 4 Erosion and Sediment Control Plan & Details 01 Rev F Hardscape Plan Conzept Landscape Architects 11 June 2024 02 Rev F Landscape Plan 03 Rev F Planting Palettes 04 Rev F Details 1 0 Rev F Details 2 06 Rev F Specifications ID: 23140-01L-DD, Rev01 DA Acoustic Report Acoustic Consulting Engineers 1 March 2024 Project No. PS199A Substation Consultant Advice Note Traca Engineering Group 7 June 2024 Reference No. 23054 Traffic Report Genesis Traffic 5 June 2024 M230207 Clause 4.6 Variation Statement Planning Ingenuity 17 June 2024 1. The applicant has filed the amendments to the Development Application DA 2023/0588 with the Court on 12 and 19 June 2024. 1. The Court orders that: 1. The cl 4.6 written request, prepared by Planning Ingenuity, dated 17 June 2024, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 and seeking a variation to the height of buildings development standard, pursuant to cl 4.3, is upheld. 2. The appeal is upheld. 3. Development Application DA 2023/0588, which seeks demolition of existing structures and construction of a 6-storey co-living housing development for 88 rooms, with basement car parking and landscaping on Lot 11 Deposited Plan (DP) 655964 and Lot 1 DP 1135754, also known as 98-100 St Hilliers Road, Auburn, is determined by the grant of consent, subject to the conditions in Annexure A. 4. 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 as a result of the amended application in the agreed amount of $2,500.00 within 28 days of the date of these orders. ………………………… Sarah Bish 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: 25 June 2024