Land and Environment Court New South Wales Medium Neutral Citation: Lee v Cumberland Council [2019] NSWLEC 1226 Hearing dates: Conciliation conference on 3 May 2019 Date of orders: 24 May 2019 Decision date: 24 May 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) The applicants are given leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A. (2) The applicants are to pay the respondent's s 8.15(3) costs thrown away in the proceeding as agreed or assessed. (3) The applicants have filed a written request pursuant to clause 4.6 of Auburn LEP 2010 prepared by Nexus Environmental Planned Pty Ltd and dated 8 May 2019. The request accords with the amended plans. I have received that request and, in accordance with clause 4.6(4) of LEP 2010, I am satisfied that: (a) the written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard; (b) 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; and (c) on this basis I am satisfied that the requirements of clause 4.6 of LEP 2010 are met. (4) The appeal is upheld. (5) Development application DA-320/2016 seeking the demolition of existing structures and construction of a 10 storey shop top housing development over basement car parking at 54-56 Joseph Street, Lidcombe is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – shop top housing –conciliation conference – agreement between the parties – orders Legislation Cited: Auburn Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Joung Sup Lee (First Applicant) Sod Hee Lee (Second Applicant) Cumberland Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicants) A Gough, Storey & Gough Lawyers (Respondent) File Number(s): 2018/236288 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Joung Sup and Sod Hee Lee (the applicants) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Cumberland Council (the Council) of Development Application DA-320/2016 (the application). 2. The application sought consent under the EPA Act for the demolition of existing structures and construction of a 10 storey shop top housing development over basement car parking at Lot 1 in DP 1029858 being 54-56 Joseph Street, Lidcombe (the site). 3. In the Statement of Facts and Contentions (SFC) filed with the Court by the Council, contentions raised by the Council regarding the application included: the density of the built form proposed which exceeded the floor space ratio (FSR) control at cl 4.4 of the Auburn Local Environmental Plan 2010 (the LEP); the height of the building which exceeded the height permissible under cl 4.3 of the LEP; the design of the retail spaces; apartment mix; and the design of the building and communal open space in terms of compliance with State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), and the associated Apartment Design Guide. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). The parties could not come to a conciliated agreement and conciliation was terminated. However, amendments were subsequently undertaken to the application to address the Council's contentions and the parties reached an agreement. They requested the matter be again listed for a s34 conciliation in order to present the agreement to the Court. I presided over that latter conciliation. 5. The agreement reached between the parties was filed with the Court under s 34(3) of the LEC Act. As the presiding Commissioner, I was required under s 34(3) to be satisfied that the decision sought by the parties was one that the Court could make in the proper exercise of its functions. In order to be so satisfied, amendments to the orders sought and documents referenced in the agreement were required. These were undertaken with a revised agreement filed. As I was satisfied that the revised agreement could be lawfully made, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 6. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 7. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 8. The site is zoned B4 Mixed Use under the LEP and the use is permissible with consent in that zone. 9. The development as amended complies with the core development standards in the LEP except in the exceedence of the maximum permissible height of 32m. The exceedence only relates to the lift overrun and results in a 700mm or 2.19% breach of the height control. 10. The applicant submitted a cl 4.6 written request seeking to justify the height breach. This was supported by the Council and submitted with the agreement. 11. I have reviewed and considered the cl 4.6 written request accompanying the agreement and am satisfied, for the reasons that follow, that it demonstrates that compliance with the maximum height required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contravention sought. Further, that the development will be in the public interest because it is consistent with the objectives of the height standard and for development in the B4 zone. 12. The concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5). 13. The reasons contained in the cl 4.6 written request in support of the height variation sought, on which my finding of satisfaction with the proposed variation is based, can be summarised as follows: 1. The height exceedence is confined to the lift overrun only with all other components of the development height compliant; 2. The lift overrun enables equitable access to and likely increased use of the communal rooftop open space within the development. Whilst there would be a reasonable argument not to provide any communal open space given the confined size and commercial context of the site, its provision is seen to add amenity for future occupants; 3. The area of the height non-compliance is setback from all boundaries and would be perceived from only limited locations if at all. Conversely, the green rooftop communal open space will provide an attractive outlook for buildings in the vicinity; 4. The site is affected by flooding requiring raising of the minimum floor level on the site than would otherwise be contemplated adding to the overall height of the building; 5. The development is otherwise consistent with the scale of development envisaged in the zone and meets the objectives of the standard; and 6. The development will provide an integrated mix of compatible uses, including retail uses fronting Joseph Street and high density residential uses, which maximise use of public transport in accordance with the objectives of the zone. 1. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP and raised in the SFC have been satisfied. 2. The development was amended to address concerns raised in terms of compliance with the design requirements of SEPP 65. 3. A Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 4. Finally, the development is also required to comply with the provisions of State Environmental Planning Policy No 55—Remediation of Land. A Phase 1 contamination report was submitted with the application and noted that the site had previously been used as a wallpaper shop and may contain chemical contaminants. However, if so, the site could be remediated for use in accordance with the application. A condition of consent has been imposed accordingly requiring remediation and contamination works at the property in accordance with a Stage 2 Site Contamination Assessment and Remedial Action Plan should chemical contaminants be detected in the Phase 2 assessment. 5. Accordingly, the Court orders that: 1. The applicants are given leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A. 2. The applicants are to pay the respondent's s 8.15(3) costs thrown away in the proceeding as agreed or assessed. 3. The applicants have filed a written request pursuant to clause 4.6 of Auburn LEP 2010 prepared by Nexus Environmental Planned Pty Ltd and dated 8 May 2019. The request accords with the amended plans. I have received that request and, in accordance with clause 4.6(4) of LEP 2010, 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 non-compliance; and 3. on this basis I am satisfied that the requirements of clause 4.6 of LEP 2010 are met. 1. The appeal is upheld. 2. Development application DA-320/2016 seeking the demolition of existing structures and construction of a 10 storey shop top housing development over basement car parking at 54-56 Joseph Street, Lidcombe is approved subject to the conditions in Annexure A. ………………………….. Jenny Smithson 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: 24 May 2019