Pertama Development Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1581

Land and Environment Court New South Wales

Medium Neutral Citation: Pertama Development Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1581 Hearing dates: Conciliation conference on 2 November 2018 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See [20] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Water Management Act 2000 Woollahra Local Environmental Plan 2014 Category: Principal judgment Parties: Pertama Development Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Solicitors: M Jaku, Jaku Legal (Applicant) S Urlich, Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/102928 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Pertama Development Pty Ltd (the Applicant) lodged under s 8.17 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Woollahra Municipal Council (the Council) of development application 649/2017 (the application). The application seeks consent under s 4.16 of the EPA Act for the demolition of existing dwellings and the construction of a seniors housing development comprising independent living units and basement parking at Lot 8 of Section C in DP 64887 and Lot 1 in DP 504424, being 58-60 Newcastle Street, Rose Bay (the site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 4. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 5. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 6. The development is situated in the R2 Low Density Residential zone of the Woollahra Local Environmental Plan 2014 (the LEP) in which residential flat buildings (RFBs) are prohibited but dwelling houses are permissible. The maximum height of development permissible on the site under the LEP is 9.5m. 7. However, the application was lodged, and is required to be determined, under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP-SH). The development is permissible under subcl 4(1)(a)(i) of the SEPP-SH as the site is situated in a residential zone where dwelling houses are permissible and otherwise meets the locational pre-requisites listed in cl 4. 8. The SEPP-SH contains site related and design requirements at Pts 2 and 3. In this regard, on the documentation provided with the application I am satisfied that: 1. The future residents of the facility will have the required access to, being not more 400m from, community facilities, a medical practitioner and the like, as well as to required public transport, given the proximity of the site to such facilities and services. Further that these facilities and services can be accessed by a pathway of an appropriate gradient. 2. The site is not bushfire prone and can be connected to the required services in terms of sewer and water. 3. The applicant has taken into account the requirements of, and undertaken, a site analysis containing the required information under, cl 30 and provided written statements as to how the design has responded to the site and met the required SEPP-SH design principles. 1. Part 4 of the SEPP-SH contains the required development standards to be complied with and the development meets those standards in terms of the minimum lot size and site frontage at cl 40(2) and (3). The SEPP-SH also includes the following height requirement at cl 40(4) relevant given RFBs are not permitted on the site: (4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and Note. Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a). (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. (c) a building located in the rear 25% area of the site must not exceed 1 storey in height. 1. The development the subject of the agreement is less than 8m in height and there is no building in the rear 25% area of the site which instead comprises landscaping and communal open space. 2. However, the development as amended during conciliation is 3 storeys in height albeit the third storey has increased boundary setbacks relative to lower levels. Accordingly, I was not satisfied the development could be approved in the absence of a variation to the standard at cl 40(4)(b) being upheld under the provisions of cl 4.6 of the LEP, that being a clause that allows such variations to a standard under environmental planning instruments, including the SEPP-SH. 3. A cl 4.6 written request was accordingly prepared and submitted by the applicant and referenced in an amended agreement. I have reviewed and considered the amended agreement and am satisfied that the written request demonstrates that compliance with the height standard at cl 40(4)(b) is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contravention sought. Furthermore, that the development will be in the public interest because it is consistent with the objectives for development in the R2 zone in which the site is situated given the site's location and circumstances and for the reasons outlined in the submitted cl 4.6 request. 4. I also note that, whilst there are no objectives for the storey height control in the SEPP-SH, the stated purpose of the 2 storey limit is to avoid an abrupt change in the scale of development in the streetscape. The development achieves this avoidance for the reasons outlined in the cl 4.6 written request; in particular that the LEP allows for a greater height in the streetscape than is proposed in the application, there is a higher building on a neighbouring site, and the third storey element is recessed and will not be visible from the street. 5. Further, the concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5), also for the reasons outlined in the written cl 4.6 request 6. The reasons contained in the cl 4.6 written request in support of the 3 storey height sought, on which my finding of satisfaction on the proposed variation is based, can be summarised as follows: 1. The development complies with both the 8m maximum permissible height under the SEPP at cl 40(4)(a) and the height limit of 9.5m in the LEP. 2. The building has been designed with the third storey recessed so that there will not be an abrupt change in built form when viewed from the streetscape or adjoining properties. 3. To restrict the development to 2 storeys on this site would be inconsistent with likely future development permissible under the LEP of up to 3 storeys or a height of 9.5m and would therefore not reflect the desired future character of the area. Therefore the amended application comprises a development that is consistent with the objectives of the R2 zone which require development to be consistent with the desired future character of the zone and compatible with the character and amenity of the neighbourhood. 4. The building will be lower than the neighbouring development at 2-4 Faraday Avenue. 5. Reasonable amenity is maintained for neighbouring development with appropriate screening for privacy and DCP compliant solar access. 1. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP and raised in contentions have been satisfied. Specifically, the impacts of the earthworks proposed were originally a contention raised by the Council however, the amended application the subject of the agreement has satisfied the requirements of the earthworks provisions at cl 6.2. 2. A precondition requires consideration under State Environmental Planning Policy No 55—Remediation of Land as to whether the land is contaminated and requires remediation. Documentation provided with the application indicates that the site has only ever been developed and subsequently used for residential purposes and is not contaminated. 3. A Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this. 4. The development was referred to Water NSW as it is integrated development under s 4.46(1) of the EPA Act. Water NSW has determined that the application is acceptable subject to General Terms of Approval (GTAs). These GTAs have been incorporated into the consent. 5. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended architectural plans and stormwater drainage plans set out in condition A.3 of Annexure "A". 2. The Applicant is to pay the Respondent's costs that are thrown away as a result of amending the application for development consent, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $12,000.00 within 28 days of the date of these orders. 3. The Applicant's written request dated November 2018 pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (the LEP) in relation to clause 40(4)(b) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 has been considered and the necessary state of satisfaction under clause 4.6(4) of the LEP has been met. Consequently, the written request is well founded and is upheld. 4. The appeal is upheld. 5. Development consent is granted to Development Application No. 649/2017 for the construction of a seniors housing development comprising 15 independent living units (self-contained dwellings) and a basement car park on Lot 8 of Section C in Deposited Plan 4887 and Lot 1 in Deposited Plan 504424, known as 58 - 60 Newcastle Street, Rose Bay, subject to the conditions of consent in Annexure "A". ………………………. Jenny Smithson Commissioner of the Court Annexure A (729 KB, 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: 20 November 2018