Land and Environment Court New South Wales Medium Neutral Citation: Khalid v Camden Council [2019] NSWLEC 1340 Hearing dates: Conciliation conference on 15 July 2019 Date of orders: 23 July 2019 Decision date: 23 July 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) The Applicant is granted leave to amend its development application to rely upon the plans and material specified in Condition 1 (2) of Annexure 'A'. (2) The Applicant is to pay the Respondent's costs in the amount of $18,000 arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of these Orders being made by the Court. (3) The appeal is upheld. (4) Consent is granted to DA-2017/709/1 for the construction of part three (3) and part four (4) storey residential flat buildings, containing 82 residential units, two levels of basement car parking for 124 vehicles, landscaping and associated works on proposed lot 101 in a re-subdivision of 35 Ingleburn Road, Leppington, in accordance with the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – residential flat buildings – conciliation conference – agreement between the parties – orders Legislation Cited: 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 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Category: Principal judgment Parties: Muhammad Imran Khalid (Applicant) Camden Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicant) C Rose, Swaab (Respondent) File Number(s): 2018/154538 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Muhammad Imran Khalid (the applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Camden Council (the Council) of Development Application No. 2017/709/1 (the application). 2. The application as lodged sought consent under the EPA Act for the construction of a residential flat building (RFB) development comprising 3 building modules on proposed Lot 101 in a re-subdivision of Lot 79 in DP8979, known as 35 Ingleburn Road, Leppington (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 design, context and character of the development, its density, height and setback, communal open space and amenity impacts arising from the design. 4. The application is required to comply with the requirements of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP) and the associated Camden Growth Centres Precincts Development Control Plan (the DCP). It must also have regard to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG). 5. The application was lodged and no objections were received. 6. The appeal was listed for hearing before me. However, prior to the hearing, the parties continued to confer with respect to amendments to the application and agreed that amendments could be undertaken, supported by both parties, which addressed the contentions. 7. The parties therefore requested that the hearing be adjourned and the matter be listed as a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated. 8. As the presiding Commissioner, I was required under s34(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 and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 9. 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. 10. 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. 11. In this regard the parties provided a Statement of Reasons confirming why the agreement was lawful and why the appeal should be upheld 12. The application, as amended, proposes the construction of a part three (3) and part four (4) storey RFB development essentially over 3 building modules, Buildings A, B and C, separated by communal open space. The development contains 82 residential units, 2 levels of common basement car parking for 124 vehicles, landscaping and associated works. 13. The amended application was lodged and no objections were received. 14. The site is zoned R3 Medium Density Residential under the Growth Centres SEPP. RFBs are permissible in the R3 zone with development consent. 15. The proposed development breaches the Height of Buildings development standard set out in cl 4.3 of Appendix 9 of the Camden Growth Centres Precinct Plan contained within the Growth Centres SEPP. 16. The applicant seeks a variation to the development standard in cl 4.3 of Appendix 9 of the Growth Centres SEPP and lodged an amended written request pursuant to cl 4.6 of the SEPP. 17. The application, as amended, otherwise meets all other development standards detailed in Part 4 of Appendix 9 of the Growth Centres SEPP. 18. I am satisfied that the cl 4.6 written request demonstrates that compliance with the building height limit is unreasonable and unnecessary in the circumstances as required by cl 4.6(3)(a), as, despite the non-compliance, the development meets the objectives of the height development standard in cl 4.3 of Appendix 9 and the breach of the standard has negligible adverse impact. 19. The cl 4.6 request also adequately establishes sufficient environmental planning grounds that justify the height breach, as required by cl 4.6(3)(b), which are summarised as follows: 1. The non-compliance with the proposed development exceeds the maximum height by less than 0.06m (0.01%) for the section of the roof of Building B to a maximum 1.18m (9.8%) for the lift overrun of Building C; and 2. The proposed development will not have any significant impacts on adjoining properties as there will be no additional effect on solar access to or overshadowing of adjoining properties. 1. In addition, the cl 4.6 request demonstrates that the proposed development as amended will be in the public interest because it is consistent with the objectives of the R3 Medium Density Residential zone under Appendix 9 of the Growth Centres SEPP. 2. Concurrence of the Director General was not required to be obtained pursuant to cl 4.6(4)(b) of the Growth Centres SEPP. 3. In addition to compliance with cl 4.6, the other applicable pre-conditions to consent contained in the Growth Centres SEPP have been satisfied. 4. Further, pursuant to cl 6.1 of Appendix 9 of the Growth Centres SEPP, public utility infrastructure that is essential for the proposed development is available, and adequate arrangements have been made to make that infrastructure available when required. 5. Deferred commencement conditions of the consent are proposed which require, prior to the consent becoming operational: 1. Demonstration of registration of Lot 101 with NSW Land Registry Services; and 2. Evidence of construction of a required temporary road shown on the approved plans to provide access. This temporary road, and dedication to Council of permanent local roads, is subject to development consent DA/2016/1335/1 which is for the re-subdivision to create proposed Lot 101. 1. The development was amended to address the merit concerns raised and the Council is satisfied in terms of compliance with the design requirements of SEPP 65, the ADG and the DCP. 2. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land requires a consent authority to consider the contamination and remediation of land when determining a development application. 3. In this regard, Condition 24 in Part 2.0 of the proposed conditions of consent requires that all additional contamination assessment and remediation actions approved under DA/2016/1335/1 is to be undertaken prior to the issue of the Construction Certificate. 4. Condition 22 in Part 4.0 of the proposed conditions of consent requires that, should any suspect materials be countered during any stage of works, such works shall cease immediately until a qualified environmental specialist has been contacted and conducted a thorough assessment, should remediation be required, all works to cease in the vicinity of the contamination and Council is to be notified immediately. Where remediation work is required, the applicant will be required to obtain consent for the remediation works. 5. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 6. Accordingly, the Court orders that: 1. The Applicant is granted leave to amend its development application to rely upon the plans and material specified in Condition 1 (2) of Annexure 'A'. 2. The Applicant is to pay the Respondent's costs in the amount of $18,000 arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of these Orders being made by the Court. 3. The appeal is upheld. 4. Consent is granted to DA-2017/709/1 for the construction of part three (3) and part four (4) storey residential flat buildings, containing 82 residential units, two levels of basement car parking for 124 vehicles, landscaping and associated works on proposed lot 101 in a re-subdivision of 35 Ingleburn Road, Leppington, in accordance with the conditions set out in Annexure 'A'. ………………………. Jenny Smithson Commissioner of the Court Annexure A (495 KB, pdf) ********** 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: 23 July 2019