Land and Environment Court New South Wales Medium Neutral Citation: HELM Pty Ltd v City of Canada Bay Council [2019] NSWLEC 1025 Hearing dates: Conciliation conference on 11 December 2018 Date of orders: 22 January 2019 Decision date: 22 January 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION: application for redevelopment for a Residential flat building; 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 Roads Act 1993 Category: Principal judgment Parties: HELM Pty Ltd (Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: A Whealy, Mills Oakley (Applicant) M Cottom, Pikes & Verekers Lawyers (Respondent) File Number(s): 2018/163953 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its development application 2017/0304. As lodged the application sought consent for: demolition of existing structures and construction of a split level three storey residential flat building comprising 20 apartments over basement parking. The development is proposed at 4 Stuart Crescent and 41 Marlborough Street, Drummoyne (Lot 1 in DP 771348). 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. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 11 December 2018. I presided over that conciliation conference. 3. Following 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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 (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The proposed development (Residential flat building) is permissible in the R3 Medium Density zone under the provisions of Canada Bay Local Environmental Plan 2013 (LEP 2013). 2. The precondition contained in LEP 2013 at cl. 4.1A: Minimum Lot size is met by the development. 3. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3: Height of Buildings within LEP 2013. The proposed maximum height of 10.95m represents a contravention of 2.45m above the numerical standard. The Applicant has filed a written variation request pursuant to cl 4.6 of LEP 2013 prepare by Ingham Planning dated 11 December 2018. I have reviewed that request and in accordance with cl 4.6(4)(a) of the LEP 2013, I am satisfied that: 1. The written request, lodged pursuant to cl 4.6 of the LEP 2013, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard. The grounds relied on by the applicant and accepted by the Council are: the design approach which results in a displacement of floor space within the development to achieve the retention of existing views for residents in Stuart Crescent; the topographic constraints of the site; and the social benefits arising from the redevelopment of the site. I am satisfied these grounds are sufficient. 2. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance. In particular: the proposed height variation is consistent with the objective of ensuring compatibility with desired future character in terms of height and roof forms; and has demonstrated consistency with the objective to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development proximate to the site. 3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard. 1. Following a review of the Statement of Heritage Impact prepared by NBRS Architects, I am satisfied that the development will not have a detrimental on the heritage significance of any items or heritage conservation areas in the vicinity of the site. 2. The application proposes access of Marlborough Street and was referred to the NSW Roads and Maritime Services (RMS) under s 138 of the Roads Act 1993. A response has been received from the RMS and its requirements are included in the consent conditions at Condition 25. 3. The application has been notified in accordance with the relevant development control plan and the submissions received from the public through this process and at the conciliation conference have been appropriately considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was 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. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is granted leave to amend the development application which is the subject of these proceedings in accordance with the amended drawings and other amended material set out in condition 1 in Annexure "A"; 2. The Applicant is to pay the Respondents costs arising under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $11,000 within 28 days of the date of these orders; 3. In relation to the proposed contravention of the development standard relating to the height of buildings set out in clause 4.3 of Canada Bay Local Environmental Plan 2013, the Court, as consent authority in these proceedings is satisfied as required by clause 4.6(4) of Canada Bay Local Environmental Plan 2013 that: 1. The written request prepared by Ingham Planning dated December 2018 on behalf of the Applicant has adequately addressed the matters required to be demonstrated by clause 4.6(3) of Canada Bay Local Environmental Plan 2013; 2. The proposed development will be in the public interest because it is consistent with both the objectives of the development standard relating to the height of buildings set out in clause 4.3 of Canada Bay Local Environmental Plan 2013 and the objectives for development within the R3 Medium Density Residential zone set out in the Land Use Table in Canada Bay Local Environmental Plan 2013; 1. The appeal is upheld; 2. Development Application No. 2017/0304 which was lodged with the Respondent on 10 August 2017, for demolition of existing structures and construction of a residential flat building at 4 Stuart Crescent, Drummoyne is approved subject to the conditions contained in Annexure "A". ………………………. D M Dickson Commissioner of the Court Annexure A ******** 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: 25 January 2019