Khoury v City of Canada Bay Council [2019] NSWLEC 1014

Land and Environment Court New South Wales

Medium Neutral Citation: Khoury v City of Canada Bay Council [2019] NSWLEC 1014 Hearing dates: Conciliation conference on 11 January 2019 Date of orders: 17 January 2019 Decision date: 17 January 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [16] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Donald Khoury (Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: G Hayek, Harrington Lawyers (Applicant) S Puckeridge, Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/170628 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal, within Class 1 of the Court's jurisdiction, is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). It is against the refusal by Canada Bay Council of development application DA 2016/0487 (DA). With the amendments occurring through the course of conciliation, the application under consideration in this judgment comprises site consolidation and development of a 4-6 storey residential flat building comprising 36 apartments, two levels of basement parking, landscaping and strata subdivision and associated works. The subject site is at Nos 118 - 128 Tennyson Road, Mortlake and is legally known as Lots 1 and 2 in DP 18575, Lot 1 in DP 55126, Lots 1 in DP 787779 and Lot 1 in DP 744778 (site). 2. 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 11 January 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties indicated that they had 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 development consent to the development application subject to conditions. 4. 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 consent authority function under s 4.16(1)(a) of the EPA Act to grant consent to the development application. 5. 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 involve the use of cl 4.6 of the Canada Bay Local Environmental Plan 2013 (LEP) to grant consent despite the contravention of development standards relating to building height and floor space ratio (FSR). The parties explained how the particular jurisdictional prerequisites have been satisfied, and expressed their agreement with the written request (received by Council on 21 December 2018) which had been prepared by the applicant's planners (Think Planners), including with input from Council's planning and urban design expert, Mr Brian McDonald. 6. Nonetheless, in these instances, the Court (in exercising the functions of the consent authority) is required to make its own direct findings of satisfaction in regard to cl 4.6 of the LEP, which I now turn to. 7. In regard to building height, I note that the LEP identifies a maximum building height of 12m. The maximum building height of the proposal is 19.6m which provides for a contravention of 7.6m or 63%. 8. In regard to FSR, I note that the LEP identifies a maximum FSR of 0.75:1 and that the FSR of the proposal is 1.52:1, or a little over double the actual control. 9. I have read the written request prepared by Think Planners and I am satisfied that the written request has adequately demonstrated that compliance in regard to height and FSR is unreasonable or unnecessary in these circumstances, and that there are sufficient environmental planning grounds to justify the contravention. I explain the reasons below. 10. The written request demonstrates how the site context is particularly idiosyncratic. The site is in the Mortlake Point precinct, an area under development transition. Significant portions of the nearby area exceed permissible height and FSR controls. In regard to height, with the amendments coming about as a consequence of conciliation, the bulk of the development is 4 storeys and in general accordance with the 12m height control, not bringing unreasonable amenity impacts. The major non-compliance is for a corner tower element at the intersection of Tennyson Road and Whittaker Street, where the 6 storey building element would present. I agree with the view expressed in the written request that this configuration would provide a positive architectural feature in the streetscape. The siting of the higher form including its setback from other development, giving consideration to existing and proposed future development, means the proposal would not bring unreasonable adverse visual impact, disruption of views, loss of privacy or loss of solar access. For this reason the development is consistent with the objectives of cl 4.3 Height of buildings. 11. In regard to FSR, I note the advice that the development is generally consistent with the bulk and scale of development in the locality and the desired future character of the locality and that it minimises adverse effects of its bulk and scale (in part through the location of the higher building element as discussed above), and appropriately balances landscaping. Having considered the plans and this advice, I find the development is consistent with the objectives of cl 4.4 Floor space ratio. 12. The proposal would provide for variety in housing type and density and would more generally provide for the housing needs of the community. The proposal is therefore consistent with the Zone R1 objectives. 13. For the reasons outlined above, I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of Zone R1 and the objectives for cl 4.3 and cl 4.4 relating to the height and FSR standards respectively. 14. Further, in regard to jurisdiction, there is a requirement under cl 7 of State Environmental Planning Policy No 55 – Remediation of Land for a consent authority to consider whether the land is contaminated. I note the record of consideration of the question of contamination in the Council assessment report (5 December 2017, p571) and the requirement for a Remediation Action Plan in proposed Condition 69. 15. I am satisfied 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. 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. 16. The Court orders: 1. The applicant is granted leave to amend development application DA2016/0487 in accordance with the plans and documents specified in condition 1 of Annexure 'A'. 2. The amendments made to the development application are not minor for the purposes of section 8.15(3) of the Environmental Planning & Assessment Act 1979. The Applicant is to pay the Respondent's costs thrown away as a consequence of the amendments in the amount of $20,000.00 within 28 days from the date of these orders. 3. The applicant's written request (identified as having been received by Council on 21 December 2018) pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (LEP) in relation to the contravention of clause 4.3 of the LEP in regard to height of buildings has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the LEP. Consequently, this written request by the applicant is well founded and upheld. 4. The applicant's written request (identified as having been received by Council on 21 December 2018) pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 in relation to the contravention of clause 4.4 in regard to floor space ratio has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the LEP. Consequently, this written request by the applicant is well founded and upheld. 5. The appeal is upheld. 6. Development consent is granted to Development Application No. 2016/0487 for the demolition of existing structures, and construction of a six storey residential flat building comprising 36 apartments, two levels of basement parking, associated landscaping and strata subdivision, is approved subject to the conditions in Annexure 'A'. ………………………. P Walsh Commissioner of the Court