Land and Environment Court New South Wales Medium Neutral Citation: Campbelltown No. 1 Property Developments Pty Ltd v Campbelltown City Council [2018] NSWLEC 1633 Hearing dates: Conciliation conference on 30 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [17] below Catchwords: DEVELOPMENT APPLICATION – mixed use residential development - conciliation conference - agreement between the parties - orders Legislation Cited: Campbelltown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Campbelltown No. 1 Property Developments Pty Ltd (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/378179 Publication restriction: No Judgment 1. This is an appeal by Campbelltown No. 1 Property Developments Pty Ltd against the deemed refusal of a development application (No. 3280/2016/DA-RA) for demolition of existing structures, the removal of 23 trees and the construction of a 10 storey residential flat building at 28 Cordeaux Street Campbelltown. The appeal is lodged pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [17] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The subject land comprises Lot 50 DP 811930 (a church, rectory and stables), Lot 51 DP811930 (a school), and Lot 3 DP575491 (comprising the building to be demolished). Lot 3 currently benefits from a right of way over an adjacent strip of land on Lots 50 and 51. In addition to the development works, the development application seeks consent for subdivision, by way of a boundary adjustment, so that the size of the development lot is increased by incorporating the land presently the subject of the right of way. The resulting development lot is proposed Lot 103, which incorporates both Lot 3 and the land on which the existing right of way is situated, and reflects a commercial agreement under which the developer will take title to proposed Lot 103. The proposed building will have access and landscaping on the land on which the existing right of way is situated, and a new right of way is proposed to be created burdening proposed Lot 103 in favour of the lots on which the church and school are located. 3. Following an adjournment of the hearing, 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 30 November 2018. I presided over the conciliation conference. 4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application seeks the demolition of existing structures, the removal of 16 trees and the construction of a 10 storey residential flat building with a 6 storey building fronting Cordeaux Street comprising 73 apartments, 3 basement parking levels, 2 ground floor commercial premises and the realignment of lot boundaries. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent, which is the decision agreed to by both parties, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the reasons set out below. 6. Firstly, the subdivision is permissible with development consent, in accordance with cl 2.6(1) of the Campbelltown Local Environmental Plan 2015 ("CLEP 2015"), and complies with the minimum lot size development standard in cl 4.1 of the CLEP 2015. 7. Secondly, the demolition and the construction of the mixed use building are permissible with development consent in the B4 zone as the development is characterised as "shop-top housing" which is a permissible use in the zoning table for the B4 zone. Similarly, both "commercial premises" and "residential flat buildings" are permissible uses in the zoning table. A small part of the site, the part which is currently the subject of the right of way, is zoned SP2. Development for the purposes of shop-top housing is permissible on the part of the land zoned SP2 only by virtue of cl 5.3(4) of the CLEP 2015. Clause 5.3 allows development that is permissible in the adjoining B4 zone to be carried out with development consent in adjoining SP2 land for a depth of up to 50m, as long as the consent authority is satisfied that: (a) the development is not inconsistent with the objectives for development in both zones, and (b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land. 1. Based on the expert opinion of the urban design experts and the heritage experts, which are contained in joint reports filed 23 and 20 November respectively, I am satisfied that there is no inconsistency with the objectives for development in the B4 and SP2 zone. Further, I am satisfied that the carrying out of the development on the SP2 land is desirable as it gives capacity for that access driveway to be improved as part of the development whilst also maintaining access for the school and the church through a new right of way. 2. Thirdly, I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The extent of the height breach is part of a lift overrun (0.9m) located on the rear tower, where the development is at 10 storeys. The height of the proposal at the Cordeaux Street frontage is 6 storeys, far less than the height development standard, in order to achieve a streetscape that maintains the significance of the heritage items and achieves positive urban design outcomes. I am satisfied that the written request, lodged pursuant to cl 4.6 of the CLEP 2015, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the 10 storey rear tower allows the development to achieve the intended scale for the site. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the expert opinion of the urban design experts, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 3. Fourthly, the joint report of the heritage experts demonstrates that the effect of the proposal on the heritage significance of the heritage items (the church, stables and former rectory) has been considered, consistent with cl 5.10 of the CLEP 2015. 4. Fifthly, based on the Statement of Environmental Effects and the floor plan for the ground floor commercial units, I am satisfied that the building will have an active street frontage and the ground floor will be used for non-residential uses, consistent with cl 7.9(3) of the CLEP 2015. 5. Sixthly, based on the Design Statement prepared by Kennedy Architects dated 27 November 2018 I am satisfied that the development exhibits design excellence, consistent with cl 7.13 of the CLEP 2015. On the same basis, and also on the basis of the SEPP 65 Design verification statement, as required by cl 30(2) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. 6. Seventhly, cl 7 of the State Environmental Planning Policy No 55—Remediation of Land requires consideration as to whether the land is contaminated and requires remediation. Documentation provided with the application indicates that the site is not contaminated. 7. Finally, as required by cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007, I am satisfied that access is achieved by a road other than the classified road as access is from Cordeaux Street, and that, based on the assessment report dated 16 October 2017, as quoted in the memorandum provided to me by counsel for the applicant, the proposal will not "adversely compromise the ongoing operation and function of Moore Street and its adjoining intersection." 8. Having reached the state of satisfaction that the decision is one that the Court can make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". That is, I am required to make orders in accordance with the agreement between the parties. The Court Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 9. 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 EPA Act. 10. The Court orders: 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 Campbelltown Local Environmental Plan 2015 seeking a variation of the development control for height of buildings set out in clause 4.3 of the Campbelltown Local Environmental Plan 2015 is upheld. 4. The Appeal is upheld. 5. Development Application No. 3280/2016/DA-RA for the demolition of existing structures, the removal of 16 trees and construction of a 10 storey residential flat building with a 6 storey building fronting Cordeaux Street comprising 73 apartments, 3 basement parking levels, 2 ground floor commercial premises and the realignment of lot boundaries at 28 Cordeaux Street, Campbelltown, NSW, is approved subject to the conditions set out in Annexure 'A' to this agreement. ………………………. Commissioner Gray Annexure A (C) Plans Revision G Part1 Plans Revision G Part2 Plans Revision G Part3 Plans Revision G Part4 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: 06 December 2018