Land and Environment Court New South Wales Medium Neutral Citation: Pinnacle Development Group Pty Ltd v Lane Cove Municipal Council [2018] NSWLEC 1663 Hearing dates: Conciliation conference on 24 September 2018; 3, 26 and 29 – 30 October 2018; 22 November 2018 Date of orders: 18 December 2018 Decision date: 18 December 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: See [10] 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 (Affordable Rental Housing) State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Pinnacle Development Group Pty Ltd (Applicant) Lane Cove Municipal Council (First Respondent) The Owners – Strata Plan No. 8676 (Second Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) J Corradini-Bird, Marsdens Law Group (First Respondent) M Parrino, Project Lawyers (Second Respondent) File Number(s): 2018/104653 Publication restriction: No Judgment 1. COMMISSIONER: Pinnacle Developments Group Pty Ltd (the Applicant) has appealed the decision of Lane Cove Municipal Council (the Respondent) to refuse its development application for demolition of existing structures and construction of a multi-dwelling development comprising three, 3-storey and one 2-storey dwellings with rear private open space over a single level of basement car parking at 22 Bellevue Avenue, Greenwich (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 September, 3, 26, 29, 30 October, and 22 November 2018, and I have presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the development application, subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. the requirement under cl 16A of State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH) that the Court take into consideration whether the design of the development is compatible with the character of the local area; 2. the prerequisites in clauses 7(1), 7(2) and 7(3) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), which are as follows: 1. 7(1) A consent authority must not consent to the carrying out of any development on land unless: 1. it has considered whether the land is contaminated; and 2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and 3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose; 1. 7(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines; 2. 7(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. 1. a request by the Applicant, prepared in accordance with the provisions of cl 4.6 of the Lane Cove Local Environmental Plan 2009 (LCLEP), to vary the development standard under cl 4.3(2A) of LCLEP in relation to height of buildings on land zoned R2 Low Density Residential. The proposed development has a proposed maximum height of 7.866m, and the maximum height of buildings permitted on the Subject Site under cl 4.3(2A) is 5m. 1. The parties have explained how the jurisdictional prerequisites have, in their opinion, been satisfied, as follows: 1. The development standard in cl 4.3(2A) is not expressly excluded from the operation of cl 4.6 of LCLEP; 2. Clause 16A of SEPP ARH requires as a pre-condition that the Court take into consideration whether the design of the development is compatible with the character of the local area. The Parties have advised that, in their opinion, the proposed development is compatible with the character of the local area. Having considered the design of the proposed development and the nature of other developments in the area, I agree with the parties that the development is compatible with the character of the local area. 3. In accordance with the requirements of clauses 7(2) and 7(3), a preliminary site investigation (PSI) has been undertaken for the Subject Site and a report on this prepared by Ground Technologies dated 11 October 2018. This report was provided to the First Respondent which concluded that the findings do not warrant a detailed site investigation. The PSI concluded that the site is suitable for development for the proposed use. The First Respondent has accepted the conclusions of the PSI which confirmed that the Subject Site is suitable for residential purposes and further detailed investigations are not warranted. Having considered these matters I am satisfied that the preconditions in Clause (7), including those in cl 7(1), of SEPP 55 have been met. 4. The proposed development exceeds the height of buildings control for the Subject Site. Under the provisions of cl 4.3(2), and its associated height of buildings map in LCLEP, the height of buildings control for the Subject Site is 9.5m. However this height control does not apply to the Subject Site if the form of development is, as proposed, for a multi-dwelling development, and in which circumstance the height of buildings control is 5m under the provisions of c4.3(2A) of LCLEP. The parties have advised that, 1. in their opinion, compliance with the control is unreasonable or unnecessary because the objectives of the height of buildings control in cl 4.3 of LCLEP are achieved notwithstanding the con-compliance, because, in the opinion of the parties, the final design of the proposed development: 1. allows for reasonable solar access to existing buildings and public areas through its stepped down design and the articulations between elements of the proposed built form; 2. ensures that any privacy and visual impacts to neighbouring developments are reasonable, particularly at the interface between the R2 zone of the Subject Site and the R4 zone of the neighbouring site to the north east. 3. Relates appropriately to the steep topography of the site by adopting a stepped down design that minimises the height of the development at its upper end. 1. there are sufficient environmental planning grounds to justify the non-compliance of the proposed development, including that: 1. the variation to the height control standard will not be readily observable from the public domain; 2. the proposed development is consistent with the desired future character of the area; 3. the design of the proposed development, including the placement of the building elements across the steep length of the subject site facilitates delivery of a built form that is consistent with the orderly and economic development of the land, which is an objective of the EP&A Act. 1. the proposed development is consistent with the objectives of the R2 zone within which the Subject Site is located, because: 1. multi-dwelling housing, as proposed, is a permitted use within the zone and provides for the housing needs of the community within a low density residential environment; 2. it is designed such that it provides the proposed new dwellings are not highly visible when viewed from the Lane Cove River or Parramatta River; 3. it provides landscaping as a major element of its design that will enhance the residential environment within the Subject Site. 1. the proposed development is in the public interest because: 1. it achieves the objectives of the height of buildings control, 2. there are sufficient environmental planning grounds to justify the non-compliance with the control. 3. it is consistent with the objectives of the R2 zone of the Subject Site. 1. I am satisfied that the jurisdictional prerequisites identified above have been satisfied and that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, for reasons provided above at [6] and [7]. 2. 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. 3. The Court orders: 1. The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure "A". 2. The Applicant is to pay the First Respondent's costs thrown away, arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000.00. 3. The Applicant's written request under clause 4.6 of the Lane Cove Local Environmental Plan 2009 seeking a variation of the development control for height of buildings set out in clause 4.3 (2A) of the Lane Cove Local Environmental Plan is upheld. 4. The appeal is upheld. 5. Development Application No. 194/2017 for the demolition of the existing structures and construction of a multi-dwelling development comprising of three (3) x 3 storey and one (1) x 2 storey dwellings with rear private open space, over a single level of basement parking at 22 Bellevue Avenue, Greenwich is approved subject to the conditions contained in Annexure "A". Development Application No. 194/2017 is approved on the basis that the height of Unit 1 is not to exceed RL89.15 to the roof line and RL89.60 to the parapet and the rooftop of Unit 1 is not to be used as a habitable/trafficable area or provide access for residents other than as required for maintenance. ………………………. Michael Chilcott Commissioner of the Court Annexure A Amendments 11 March 2019 - Pursuant to UCPR r 36.17, the slip rule, by consent of the parties, amend orders of 18 December 2018 so that the following text, which was previously omitted, is included in Order (5): "Development Application No. 194/2017 is approved on the basis that the height of Unit 1 is not to exceed RL89.15 to the roof line and RL89.60 to the parapet and the rooftop of Unit 1 is not to be used as a habitable/trafficable area or provide access for residents other than as required for maintenance." 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: 11 March 2019