Land and Environment Court New South Wales Medium Neutral Citation: Beaini Projects Pty Ltd v Cumberland Council [2018] NSWLEC 1603 Hearing dates: Conciliation conference on 2 November 2018 Date of orders: 22 November 2018 Decision date: 22 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 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Beaini Projects Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Solicitors: A Cowper, Mills Oakley (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/190525 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Beaini Projects Pty Ltd (the Applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Cumberland Council (the Council) of development application DA-110/2018 (the application). 2. The application seeks consent under the EPA Act for the demolition of existing commercial buildings and the construction of a 12 storey mixed use (shop top housing) development comprising residential apartments above commercial tenancies with basement parking at Lot B DP 410947, being 108-120 Station Street, Wentworthville (the site). 3. 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. It is noted that the parties reference the site in the agreement as 108 Station Street. 4. 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. 5. 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. 6. 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. 7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site is located on the fringe of the Wentworthville Town Centre and is 310m from the railway station. It is predominantly zoned B2 Local Centre pursuant to the Holroyd Local Environmental Plan 2013 (the LEP). The balance of the site is zoned SP2 Infrastructure being land to be dedicated by the Applicant for a public lane. The proposed mixed use development is confined to the B2 zoned portion of the site and such development, defined as 'shop top housing' in the LEP, is permissible with consent in the B2 zone. 8. The development complies with the maximum permissible floor space ratio (FSR) for the site of 4.5:1 under cl 4.4 of the LEP. On June 22, 2018 the LEP was amended to introduce cl 4.4(2C). This clause requires buildings on certain lands (including the site) that are used for non-residential purposes to have a minimum FSR of 0.5:1. The development is therefore required to have at least a commercial FSR of 0.5:1. It was contended by the Council that this requirement was not met. However, as a result of amendments to the plan agreed during conciliation, the minimum required amount of commercial FSR is now provided. 9. The site was the subject of a site specific amendment to the LEP to introduce new height controls which now apply under cl 4.3: being up to 41m essentially in the centre of the site fronting Station Street and surrounded by a strip of land with a maximum height of 29m. Previously the maximum permissible height across the entire site was 20m. The SFC indicates that the intent of the LEP amendment was to 'enable a larger development to be achieved on the subject site'. 10. The Statement of Environmental Effects (SEE) accompanying the application indicates that the LEP amendment which introduced the increased heights was based on indicative sketches for a high rise development on the site of up to 12 storeys. 11. The application as lodged with the Council proposed a 12 storey tower but contained elements which exceeded the increased height permissible by the LEP amendment. The Council contended that the written request to vary the height lodged under cl 4.6 of the LEP did not just justify the height breaches sought. 12. The maximum height of the development is within the area designated with a 41m height limit and is 44.13m which is to the top of the lift overrun. This represents a 3.13m or 7.63% breach. A small portion of the roof also exceeds 41m by up to 1.37m or 3.34%. A rear portion of the building located in the area with a 29m height limit, but adjoining the 41m height control area, has a maximum height of 30m which is a 1m or 3.4% breach. 13. In addition to amending the plans, the Applicant prepared an amended cl 4.6 written request seeking to justify these breaches. The amended cl 4.6 request was supported by the Council and submitted with the agreement. 14. I have reviewed and considered the agreement and am satisfied that the amended cl 4.6 written request demonstrates that compliance with the maximum heights required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contraventions sought. Furthermore, that the development will be in the public interest because it is consistent with the objectives for development in the B2 zone in which the site is situated given the site's specific controls and for the reasons outlined in the submitted cl 4.6 request. 15. 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. 16. The reasons contained in the cl 4.6 written request in support of the height variations sought, on which my finding of satisfaction on the proposed variations is based, can be summarised as follows: 1. The Council has adopted a Centre Place Making Strategy (the Centre Strategy) which provides a vision for developing the Town Centre. The specific controls adopted for the site were based on a planning proposal design which facilitated and encouraged a substantial development on the site generally in the form now proposed being a tower in the order of 12 storeys with smaller towers up to 8 storeys adjoining. The scale and massing proposed is therefore consistent with the Centre Strategy, planning proposal for the site, and the desired future character of the locality. 2. Subsequent to preparing the planning proposal, the Council indicated that the front portion of the site was impacted by a flow path for floodwaters and the finished floor level of the ground floor tenancies would therefore need to be lifted, increasing the height of the development by some 500mm to provide the required freeboard. 3. In numerical terms the variations sought are minor and represent between a 3.4% and 7.6% variation to the standard. They are primarily to facilitate the lift overrun and part of the roof element not to provide additional floor space, extra density or another level thus retaining the 12 storeys envisaged by the LEP Amendment. The development therefore provides an appropriate scale and intensity thus meeting this objective of the standard. 4. The development meets the objectives of the B2 zone to provide a range of uses to serve the area and employment opportunities on a site where development can maximise public transport usage, encourage walking and cycling (to the station, bus routes and the Town Centre in particular) and provides for a well integrated mixed use development. 5. No substantive public benefit would be realised by requiring strict compliance with the standard as the overall design approach and outcome for the site envisaged by the planning proposal and Centre Strategy are being realised whilst providing an appropriate relationship with neighbouring properties. 6. The development ensures sufficient solar access and privacy for neighbouring properties, a requirement incorporated into one of the objectives of the height standard. 7. A further objective of the standard is that development is to be consistent with the landform. In this regard, the building has been designed to respond to the sloping form of the site enabling activation to both Station Street and the new lane with a commercial tenancy able to be accommodated on the low side of the site. 1. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP and raised in the SFC have been satisfied. Specifically, there is now agreed adequate supply of electricity for the development thus meeting the essential services provision of cl 6.3. 2. The development was amended to address concerns raised in terms of compliance with the design requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, in particular the Apartment Design Guide requirements for minimum internal rooms sizes and residential amenity. 3. Finally, a Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 4. Accordingly, the Court orders that: 1. The Applicant is granted leave to rely on the plans and documents set out under condition 1 of the conditions of consent annexed hereto and marked "A". 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The Applicant's written request under clause 4.6 of Holroyd Local Environmental Plan 2013 seeking a variation of the development control for height of buildings set out in clause 4.3 of the Holroyd Local Environmental Plan 2013 is upheld. 4. The appeal is upheld. 5. Development consent is granted to Development Application No. 2018/110/1, for the demolition of existing structures and construction of a 12 storey mixed use development over 3 levels of basement car parking accommodating 80 residential units, 6 commercial tenancies and 129 car parking spaces at 108 Station Street, Wentworthville subject to the conditions of consent annexed hereto and marked "A". …………………………. Jenny Smithson Commissioner of the Court Annexure A (318 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: 22 November 2018