Land and Environment Court New South Wales Medium Neutral Citation: Atlen Construction Pty Ltd v Hunters Hill Council [2019] NSWLEC 1329 Hearing dates: Conciliation Conference on 1 May 2019 and 4 July 2019 Date of orders: 12 July 2019 Decision date: 12 July 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders: (1) The Applicant is granted leave to rely on the amended plans listed in condition 2 in Part A of the conditions of consent contained at Annexure "A". (2) The Applicant's written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the height standard imposed by clause 4.3 of the HHLEP is upheld. (3) The Applicant's written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the FSR standard imposed by clause 4.4 of the HHLEP is upheld. (4) The appeal is upheld. (5) Development application no. DA2017/1197 seeking development consent for demolition of existing structures and construction of a new shop top housing development including basement parking and associated landscaping at 223-227 Victoria Rd, Gladesville, is approved subject to the conditions contained at annexure "A." Catchwords: DEVELOPMENT APPEAL – conciliation conference –residential apartment development – shop top housing – retail frontage to street – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment Regulation 2000 Hunters Hill Local Environment Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Atlen Construction Pty Ltd (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: S Duggan SC (Applicant) M Staunton (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/279896 Publication restriction: No Judgment 1. COMMISSIONER: 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 of Development Application No. 2017-1197 which seeks approval for the demolition of all existing improvements / structures on the site for the erection of a shop top housing development comprising residential apartments, retail shops and commercial tenancies, lower ground floor storage and residential lobby, 5 levels of apartments and base car parking. 2. The site is legally described as follows Lot A in DP185404 and Lot 1 in DP234486 at 223-227 Victoria Road, Gladesville, which is located to the north of Heritage Item I488 on Sch 5 to the Hunters Hill Local Environmental Plan 2012 (HHLEP). 3. The site is adjacent to a property that is not the subject of the application, but for which future provision has been made in the layout of the basement car parking to ensure the site is not isolated by the proposed development. 4. To the rear of the site is a Shareway which is composed of a combination of public road and various rights of way, including to the subject site, and which provide informal pedestrian and vehicular access between Victoria Road, Cowell Road and Massey Street. 5. The site is zoned B4 Mixed Use under the provisions of the HHLEP which permits shop top housing with consent, and are within Heritage Conservation Area C3 (Gladesville Village). 6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 May 2019, after which the conciliation conference was adjourned to allow the applicant to prepare amended plans. The conciliation conference was convened again on 4 July 2019. I presided over the conciliation conference. 7. At the conciliation conference on 4 July 2019, the parties 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 July 2019. 8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 9. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, including a written request made pursuant to cl 4.6 of the HHLEP seeking a variation of the development standard for the height of buildings set out in cl 4.3 of the HHLEP, and a written request seeking variation of the development standard for the floor space ratio set out in cl 4.4 of the HHLEP. 10. The parties explained to me during the conference as to how the requirements of the HHLEP have been satisfied in order to allow the Court to make the agreed orders at [28]. 11. As the proposed development is a residential apartment development, the provisions of State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development (SEPP65) apply. I am satisfied that a design verification statement has been prepared by a qualified designer, Architect Paul Godsell Reg No. 6726, and in a form that is consistent with cl 50 (1AB) of the Environmental Planning and Assessment Regulation 2000. Written request to vary development standards 1. Clause 4.6(4) of HHLEP 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 [13] ("Initial Action")). 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, and a written request to justify the contravention of the floor space ratio development standard at 223-227 Victoria Road, prepared by Hamptons Property Services, dated 4 July 2019. 3. Relevantly, the site is located between zones for the purposes of the height of buildings, consisting of a maximum height of 19m to the portion fronting Victoria Road, and a maximum height of 16m to the portion of the site fronting the Shareway to the rear. The site falls steeply from the Victoria Road frontage, to the Shareway frontage and both frontages are splayed. Height of Building at 223-227 Victoria Road 1. I am satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary for the following reasons: 1. The height of the proposal at the Victoria Road frontage, and the Shareway frontage is compliant with the height of building development standard found in cl 4.3 of the HHLEP. 2. The proposal consolidates development in two towers of five storeys in height which are separated by a distance of 12m to comply with the Apartment Design Guide (ADG) and ensure natural ventilation and daylight with appropriate visual privacy. As this arrangement has the potential to compromise the amenity of communal open space if located between the tower forms, it was decided to locate the communal open space to the rooftop where it utilises the north facing aspect. 3. The contravention of the development standard is predominantly the result of the lift and stair core which provide access to the communal open space with a modest provision of shading and shelter. 4. The proposal is consistent with the objectives of the standard notwithstanding the non-compliance with the standard, and there is no adverse impact caused by the breach of the standard in relation to solar access, privacy or the obstruction of views. 1. I am also satisfied that the written request made under cl 4.6 of the HHLEP adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the non-compliance provides no additional floor space to the development, but is limited to the provision of communal open space at a location that does not impose adverse impacts on neighbouring properties. 2. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard for the following reasons: 1. The location and design of the communal open space will soften the form of the proposed development when viewed from the shareway to provide a visual transition between the higher building height permitted to Victoria Road, and the Shareway precinct. 2. No loss of privacy, or loss of solar access results from the particular aspect of the proposed development that contravenes the development standard and no obstruction of views is evident. 3. A through-site link at the ground and lower ground level helps to integrate business, office, residential, retail and other development in an accessible location so as to maximise public transport patronage and encourage walking and cycling, and to maximise levels of pedestrians and business activity. 4. The separation of tower forms reduces the visual bulk, particularly on the longer frontages, which helps to provide an appropriate transition between the business zones and surrounding residential localities. Floor space ratio at 223-227 Victoria Road 1. The applicant provided a written request seeking to justify the contravention of the floor space ratio development standard at 223-227 Victoria Road, prepared by Hamptons Property Services, dated 4 July 2019. 2. The floor space ratio applicable to the site is derived by reference to the Floor Space Ratio Map within the HHLEP, and may be described as 2.5:1. The written request states that the non-compliance is measured at 0.06:1. 3. I am satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary as a result of the proposed development providing for a through-site public pedestrian link, that is generous in its dimensions and which contributes to the exceedance of FSR. 4. The through-site link is to be the subject of a right of footway easement in favour of the Council pursuant to s 88A of the Conveyancing Act 1919 to allow public access as set out in Condition 20 of Annexure 'B'. 5. I am also satisfied that the written request made under cl 4.6 of the HHLEP adequately establishes sufficient environmental planning grounds that justify the breach in the floor space ratio standard by demonstrating that the non-compliance arises due to the reinstatement of a public through-site link in the form of an arcade that connects the Gladesville Shopping Centre to Victoria Road and does not allow for floor space that would derive commercial benefit to the landowner such as a leasable retail or commercial floor space. 6. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. The proposed development comprises a mix of uses on the site that are compatible with the character and potential of the location, with particular reference to retail tenancies to both Victoria Road and the Shareway frontage that are accessible by provision of a through-site link, escalators, elevators and the like. 7. Furthermore, the arrangement of retail tenancies to Victoria Road and the Shareway encourages passive surveillance and activation which are likely to maximise levels of pedestrian and business activity along those street frontages. 8. 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. 9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties 10. 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. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is granted leave to rely on the amended plans listed in condition 2 in Part A of the conditions of consent contained at Annexure "A". 2. The Applicant's written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the height standard imposed by clause 4.3 of the HHLEP is upheld. 3. The Applicant's written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the FSR standard imposed by clause 4.4 of the HHLEP is upheld. 4. The appeal is upheld. 5. Development application no. DA2017/1197 seeking development consent for demolition of existing structures and construction of a new shop top housing development including basement parking and associated landscaping at 223-227 Victoria Rd, Gladesville, is approved subject to the conditions contained at annexure "A." ………………………. Tim Horton Commissioner of the Court Annexure A (137 KB) ********** 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: 12 July 2019