Land and Environment Court New South Wales Medium Neutral Citation: Coronation (33 Shepherd St) Pty Ltd v Liverpool City Council [2019] NSWLEC 1170 Hearing dates: 2-3 April 2019 Date of orders: 16 April 2019 Decision date: 16 April 2019 Jurisdiction: Class 1 Before: Horton C Decision: (1) The applicant is granted leave to amend the application for development consent, by relying on the documentation listed in condition Part 2 (A)(1) of Annexure A and subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed. (2) The written request dated March 2019, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008 seeking a variation to the development standard for height of buildings set out in clause 4.3 is upheld. (3) The appeal is upheld. (4) Development Application No. 471/2017 for the construction of a 17-storey residential flat building consisting of 200 apartments over 3 levels of basement parking; with associated landscape and drainage works, is approved, subject to the conditions of consent at Annexure A. (5) The exhibits, other than Exhibits 3, C and M, are returned. Catchwords: DEVELOPMENT APPLICATION: apartment design guide – residential apartment development – design excellence – Liverpool city centre Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 1979 Greater Metropolitan Regional Environmental Plan No.2 – Georges River Catchment Liverpool Local Environmental Plan 2008 State Environmental Planning Policy (BASIX) 2004 State Environmental Planning Policy No.55 – Remediation of Land State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development Water Management Act 2000 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Category: Principal judgment Parties: Coronation (33 Shepherd St) Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) Solicitors: Hall & Wilcox (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/76062 Publication restriction: No Judgment Introduction 1. This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the respondent of DA-471/2017 that initially sought approval for the demolition of existing structures and construction of a 17-storey residential flat building comprising 198 units over 3 levels of basement parking; with associated landscaping and drainage works. 2. At the commencement of the hearing, the applicant was granted leave to rely on amended plans which is for a 17-storey residential flat building consisting of 200 apartments over 3 levels of basement parking; with associated landscape and drainage works. 3. The Amended Statement of Facts and Contentions (Ex 1) filed by the Council on 8 March 2019 records the background to the application and the relevant statutory controls. However, the parties continued to confer prior to the commencement of the hearing and resolved a number of the contentions. The essential facts follow. The site and its context 1. The site has a total area of 4,016m2 with a frontage of 65m to Shepherd Street and is currently the subject of a boundary realignment and road closure application, which is excluded from the application before the Court, but which seeks the consolidation of Lots 3, 4 and part of Lot 5 in DP247485 to create proposed Lots 1 and 2. 2. The site is located on the western shoreline of the Georges River, approximately 1.2km from the Liverpool Railway Station and is within an existing industrial area that is undergoing urban transformation following rezoning for high density residential development. 3. It is relevant to these proceedings that the site is part of a wider 'Shepherd Street precinct' that has been developed in stages. The precinct was the subject of a planning proposal which sought an uplift to the existing height and floor space ratio provisions in the Liverpool Local Environmental Plan 2008 (LLEP). The Shepherd Street planning proposal was gazetted on 3 November 2017. 4. The applicant and its agents are engaged in ongoing liaison with Council relating to a number of developments in the Shepherd Street precinct. The architectural firm who assisted with the original planning proposal, SJB Architects, is the same firm that prepared the development application before the Court. 5. I understand that consent has been granted for the demolition of the existing structures on the site, and that a Voluntary Planning Agreement was executed on 8 November 2017 in relation to 20, 28, 31-33 Shepherd Street, Liverpool. Consideration 1. The Court was assisted by joint expert reports prepared in relation to Town Planning and Urban Design, and which found no areas of disagreement. The applicant relied on the expert advice of Mr Adam Coburn (Town Planning) and Mr Adam Haddow (Urban Design). The respondent relied on the expert advice of Mr Nelson Mu (Town Planning) and Mr David Petrie (Urban Design). Mr Mal Brown, a Principal and senior environmental engineer with Northrop, provide expert advice on Riparian Zone Management. 2. The parties are generally agreed that the contentions are substantially resolved, and that the appeal may be upheld subject to Court, exercising its function as the consent authority on appeal, being satisfied of a number of jurisdictional matters which I now consider. 3. Pursuant to s 4.46 of the EPA Act, the proposed development is development that, in order for it to be carried out, requires approval pursuant to Part 3 of Chapter 3 of the Water Management Act 2000. In a letter received on the eve of the hearing, the Natural Resources Access Regulator confirmed its General Terms of Approval (Ex 3), and so I am satisfied that the approval has been obtained from the relevant approval body in relation to the development. 4. The site was formerly a smash repair business, and investigations have determined the likelihood of site contamination. I am satisfied that the provisions of State Environmental Planning Policy No 55 – Remediation of Land have been met by having regard to a Detailed Site Contamination Investigation, and a Remediation Action Plan, prepared by EI Australia. 5. The stated aims of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) are to improve the design quality of residential apartment development, and to recognise that the design quality of residential apartment development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design. 6. Clause 28(2) of SEPP65 requires that a consent authority, in determining whether to grant consent, must consider the following: .. (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. 1. It is relevant to provisions contained in [11(a)] that the respondent referred the proposed development to the Western Sydney City Planning Panel (WSCPP) for review and advice. In turn, the WSCPP relies on the Liverpool City Council Design Excellence Panel (DEP) for design review of the proposal. 2. I have considered the advice of the design review panel by regard to Exhibit 4 which contains the general support of the Chair of the WSCPP, Mr Justin Doyle for the proposal as amended by Exhibit A plans, subject to either deferred commencement provisions in the conditions of consent or, for the removal of doubt, the signoff of final amendments by the Chair of the DEP, Mr Rory Toomey. 3. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I am satisfied that the statement found at Exhibit B is in a complying form. 4. Clause 30 of SEPP65 includes provisions for which consent must not be refused and which relate to car parking, the internal area of apartments and ceiling heights. The parties are agreed that the proposal complies in respect of these provisions. Liverpool Local Environmental Plan 2008 1. The site is located in an R4 High Density Residential zone, and within an area defined as the Liverpool City Centre. The objectives of the zone are in the following terms: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To minimise the fragmentation of land that would prevent the achievement of high density residential development. 1. Clause 7.1 of the LLEP requires the Court to be satisfied that the proposed development is consistent with the objectives for the redevelopment of the city centre. The relevant objectives are as follows: (a) to preserve the existing street layout and reinforce the street character through building alignments (b) to allow sunlight to reach buildings and areas of high pedestrian activity … (f) to enhance the natural river foreshore and places of heritage significance (g) to provide direct, convenient and safe pedestrian links between the city centre (west of the rail line) and the Georges River foreshore 1. I am satisfied that the proposed development is consistent with the relevant objectives given the retention of the 'bulb' in the Shepherd Street cul-de-sac, and the broad consistency of the proposal with the form and scale found in the planning proposal, and in the public link to the Georges River foreshore provided to the north of the site, albeit primarily a vehicular zone to access car parking. 2. I am satisfied that the separation of buildings complies with the distances specified in cl 7.4 of the LLEP. 3. Clause 7.5 of the LLEP requires the Court to be satisfied that the development exhibits design excellence prior to the granting of consent. The respondent submits Minutes from meetings of the DEP which contain recommendations reflected in the contentions. The parties are agreed that the plans found in Exhibit M address a number of the DEP recommendations. 4. During the hearing, further amended plans were prepared that the applicant intended would satisfy the DEP on two issues agreed by the parties as outstanding, including the preparation of a landscape plan prepared by a landscape architect, and confirmation of the materials and detailing applied to the podium presentation to the Georges River foreshore. In my view, it is reasonable to conclude from the further amended plans and the statement of support at [16] that the proposed development satisfies the criteria of design excellence found in cl 7.5 of the LLEP. 5. Clause 7.6 of the LLEP requires a consent authority to consider development on environmentally sensitive land. The LLEP identifies a portion of the site along the Georges River foreshore to be Environmentally Sensitive Land. From a site view, I accept the applicant's submission that the current condition and significance of the vegetation along the foreshore in the location of the site is largely weed species of low significance. I also note the advice of Mr Mal Brown in Exhibit L that the soil depth in the riparian zone will be in the order of 2.4m above the basement car parking below, allowing for sufficient plant roots and subsoil drainage to successfully revegetate the river bank. 6. Clause 7.7 of the LLEP identifies the site comprises Class 5 acid sulphate soils. The applicant submits a report from EI Australia on extensive investigations made at No.'s 20, 26, 28, 32-34 and 31-33 Shepherd Street and which satisfies me that the action criteria found in Table 4.4 of the Acid Sulfate Soil Manual is unlikely to be triggered that would require the preparation of an acid sulphate soils management plan. Written request to contravene development standard 1. The maximum permissible height of buildings on the site is predominantly 56m, with a height of 65m applicable to a smaller portion of the site. The proposed development exceeds the maximum height of 56m by a dimension of 2.96m, representing a variation of 5.28%. 2. The applicant provided a written request (Ex C) seeking to justify the contravention of the height of buildings development standard dated March 2019. 3. Clause 4.6(4) of the LLEP establishes certain preconditions that must be satisfied before the Court, exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13] ("Initial Action")). 4. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters found in cl 4.6(3), including: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary as the exceedance provides access to rooftop communal open space, is largely concealed from Shepherd Street, will not result in adverse solar or privacy impacts and is consistent with the objectives of the height control, and zone objectives. 2. The applicant must satisfy the Court that there are sufficient environmental planning grounds to justify contravening the development standard in the written request under cl 4.6. The environmental planning grounds relied upon must focus on the particular aspect or element of the development that contravenes the development standard itself, and not the carrying out the development as a whole (Initial Action at [24]). 3. The applicant's written request asserts that sufficient environment planning grounds exist given the development proposes an exceedance that is integral with an architectural roof feature permitted by cl 5.6 of the LLEP, and will be seen in the context of surrounding buildings that are similar and larger in height that the proposed development which ensures that minor variations do not result in unacceptable outcomes. 4. I am satisfied that justifying the aspect of the development that contravenes the development standard on this basis can be properly described as an environmental planning ground within the meaning identified by Preston CJ in Initial Action at [23]. Whether the proposal is in the public interest 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives. 2. I am satisfied that the proposed development will be in the public interest because: 1. It is consistent with the objectives of the R4 High Density Residential zone which are as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To minimise the fragmentation of land that would prevent the achievement of high density residential development. 1. It is consistent with the objectives of the height of buildings development standard which, at cl 4.3, are in the following terms: (a) to establish the maximum height limit in which buildings can be designed and floor space can be achieved, (b) to permit building heights that encourage high quality urban form, (c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity. 1. No component of the exceedance is habitable, and 2. The exceedance does not impede the capability of adjoining future residential land to be developed 1. The applicant's written request pursuant to cl 4.6 of the LLEP seeking to justify the breach of the Height of Buildings development standard set out in cl 4.3 of the LLEP has been considered and I have formed the necessary opinion of satisfaction under cl 4.6(4) of the LLEP that the applicants written request is well founded. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the application for development consent, by relying on the documentation listed in condition Part 2 (A)(1) of Annexure A and subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed. 2. The written request dated March 2019, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008 seeking a variation to the development standard for height of buildings set out in clause 4.3 is upheld. 3. The appeal is upheld. 4. Development Application No. 471/2017 for the construction of a 17-storey residential flat building consisting of 200 apartments over 3 levels of basement parking; with associated landscape and drainage works, is approved, subject to the conditions of consent at Annexure A. 5. The exhibits, other than Exhibits 3, C and M, are returned. …………………….. T Horton 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: 16 April 2019