Land and Environment Court New South Wales Medium Neutral Citation: Adamstown BD Pty Ltd v Newcastle City Council [2019] NSWLEC 1174 Hearing dates: Conciliation conference on 5 April 2019 Date of orders: 08 April 2019 Decision date: 08 April 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [7] 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 Newcastle Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Adamstown BD Pty Ltd (Applicant) Newcastle City Council (Respondent) Representation: Counsel: Mr. J Farrell (Respondent) Solicitors: Mr N Sandstrom, Mills Oakley Lawyers (Applicant) Mr J Marshall, Newcastle City Council (Respondent) File Number(s): 2018/00071744 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application 2017/01255. As amended the application seeks consent for construction of three residential flat buildings comprising: 22 x 1 bedroom apartments; 45 x 2 bedroom apartments and 17 x 3 bedroom apartments; underground car parking comprising 95 spaces and ancillary works. The development is proposed at 59-63 Dale Street and 298-302 Brunker Road, Adamstown (Lot 36 Sec A, Lot 37 Sec A and Lot 38 Sec A in DP 10602, Lot 1,2, and 3 in DP8279). 2. 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. 3. 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 4 September 2018 and 5 April 2019. Following the conciliation 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 property is zoned part R3 Medium Density Residential Zone and part R4 High Density Residential under the Newcastle Local Environmental Plan 2012 (LEP 2012). Residential Flat Buildings are permitted with consent within both zones. 2. The application has been notified in accordance with the relevant development control plan and the submissions have been considered. 3. compliance with State Environmental Planning Policy No 55- Remediation of Land is achieved by an appropriate Remediation Action Plan prepared by Douglas Partners Pty Ltd dated June 2018. 4. the proposed development is compliant with the floor space ratio development standard in cl 4.4 of LEP 2012. 5. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard at cl 4.3 of LEP 2012. The development standard establishes a maximum height of 14m above natural ground across the entirety of the subject site, notwithstanding the split zoning. The development as proposed exceeds the height standard by 3.3m. 6. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by KDC Planning Development Property, dated 2 April 2019. This request accords with the amended plans. I have reviewed that request and in accordance with cl 4.6(4) of LEP 2012, I am satisfied that: 1. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard. 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 noncompliance. 3. On these basis's I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R3 Medium Density Residential Zone, the R4 High Density Residential and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met. 5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. Further I am satisfied that the public benefit of maintaining that standard is not considered significant as, regardless of the noncompliance the development will appear compatible in the streetscape and raises no adverse amenity impacts. 6. On this basis I am satisfied that the requirements of cl 4.6(4)(b) of LEP 2012 are met. 7. In accordance with State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, a design verification statement has been provided by a registered architect (Marcus Graham ACT reg. 1090). 8. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged (863999M-02). 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 rely on the amended architectural plans and material referred to in condition 2 of the conditions of consent contained in Annexure 'A'; 2. The Applicant's written request under cl 4.6 of Newcastle Local Environmental Plan 2012, prepared by KDC and dated 2 April 2019 (contained at Annexure 'B') for contravention of the maximum height development standard imposed by cl 4.3 of Newcastle Local Environmental Plan 2012 is upheld; 3. The Appeal is upheld; 4. Development Application no 2017/01255 for the demolition of all existing structures, driveway slab, and buildings, construction of three residential flat buildings comprising 22 x 1 bedroom units, 45 x 2 bedroom units and 17 x 3 bedroom apartments, underground car parking providing 95 car parking spaces, waste storage area and residential storage space, landscaping works, one new vehicle crossing and ancillary building and site works at 59-63 Dale Street and 298-302 Brunker Road, Adamstown is approved subject to the conditions contained at Annexure 'A'. ………………………. D M Dickson Commissioner of the Court ​ *********** Annexure A Annexure B Architectural Plans 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