Land and Environment Court New South Wales Medium Neutral Citation: UrbanLuxe Boronia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1371 Hearing dates: Conciliation conference on 24 June 2019 and 5 July 2019 Date of orders: 06 August 2019 Decision date: 06 August 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure 'A'. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $4,250 payable within 14 days of the date of these orders. (3) The Applicant's written request pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 ("SSLEP") seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of SSLEP dated 29 April 2019 has been considered and the parties have formed the necessary opinion of satisfaction under clause 4.6(4) of SSLEP. Consequently, the Applicant's written request is well founded and should be upheld. (4) The appeal in respect of the property known as 21-23 Boronia Avenue, Engadine NSW is upheld. (5) Development Application DA18/1175 to demolish the existing structures on the site, construct a residential flat building containing 31 apartments with 40 basement car parking spaces, landscaping, a roof top communal open space area and strata subdivision at 21-23 Boronia Avenue, Engadine NSW is approved subject to the conditions at Annexure "A". Catchwords: DEVELOPMENT APPLICATION – 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 No 65 – Design Quality of Residential Apartment Development Sutherland Shire Local Environmental Plan 2015 Texts Cited: Sutherland Development Control Plan 2015 Category: Principal judgment Parties: UrbanLuxe Boronia Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/364870 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 18/1175 by Sutherland Shire Council (hereafter the Council) to demolish existing structures and construct a seven storey residential flat building containing 31 apartments with 40 basement car parking spaces over 2.5 levels, landscaping, a roof top communal open space area and strata subdivision at 21-23 Boronia Avenue, Engadine NSW (hereafter the site). 2. The DA was lodged with Council on 8 October 2018 and advertised the application from 19 October to 5 November 2018. Thirty (30) submissions were received in response, raising issues relating to: solar access/overshadowing; increased noise; loss of privacy; non-compliance with building height; general bulk and scale; and other associated matters This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 24 June 2019. I presided over the conciliation conference. There were seven objectors heard at this conciliation. The issues raised by objectors were similar to those raised in previous submissions, and are resolved to the parties' satisfaction. 1. Following the conciliation conference, the applicant amended the plans and the cl 4.6 written request for variation of a development standard, on which this agreement relies. The Court hereby grants leave to rely on the amended plans referred to in the orders below. Based on these amended plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 18/1175 with conditions. 2. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 18/1175 under appeal with conditions. 3. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65); Sutherland Shire Local Environmental Plan 2015 (SSLEP); and Sutherland Development Control Plan 2015 (SDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal. 4. The proposed development satisfies the requirements under cll 50(1AB) and 143A of the SEPP 65, and specifically satisfies the relevant design quality principles. 5. The parties agree that the relevant provisions of the SSLEP are addressed to their satisfaction by the supporting documents and plans to the DA under appeal. The parties have assessed that the proposed development does not contravene any development standards, except height and specifically resolves the contentions as follows: 1. Clauses 2.1 and 2.3 - the site is located within a in the B3 Commercial Core zone. The proposed development as a residential flat building, is a permissible use in this zone, and is not inconsistent with the zone objectives. 2. Clause 6.16(1)(g) – the proposed the movement of the whole building form back into the site and improved entry to the building have resolved any potential design issues as they relate to security. 1. The parties explained that a portion of the lift overrun, by 0.3m, does not comply with the maximum height standard (of 20m), as required in cl 4.3 of the SSLEP. Therefore, the parties agree that a cl 4.6 written request for variation of height is required for further consideration of the proposed development, pursuant to cl 4.6 of the SSLEP, and that the Court must also be satisfied pursuant to grant consent to the DA. 2. The parties agree that a variation of the non-compliance with the height development standard in cl 4.3 of the SSLEP is satisfied by the cl 4.6 written request that addresses the requirements for a cl 4.6 variation of the development standard. 3. The parties accept that the height non-compliance is in response to activation of communal space on the upper level and the requirement to access this area. The parties agree that the cl 4.6 written request addresses the worst case scenario, which has a height non-compliance up to 0.3m (a variance up to 1.5%), which relates to the lift overun, and there are no amenity impact to adjoining residences as a result of this feature that results in the height non-compliance. 4. It is agreed that on this basis, the cl 4.6 written request for standard variation addresses the requirement of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the breach, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area and due to the recessed nature of the structure on the site, will not be a dominant feature as viewed from the main street frontage (Boronia Avenue) or result in loss of amenity, particularly overshadowing to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and other development standards, and height non-compliance at both street frontages will not be dominant in the streetscape. 5. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for B3 zone) and the height standard (cl 4.3), as established in the SSLEP. The proposed height exceedance is therefore reasonable and necessary, resulting in a height increase across a very limited portion of the site that does not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is in the public interest. 6. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed and that a variation in the height standard, pursuant to cl 4.3, is appropriate as proposed in the development. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the SDCP are resolved to the satisfaction of the parties. The mitigation of overshadowing by the site to adjoining properties by setting the building back from the street frontage to maximise solar access to areas of concern by the residents. The amended internal design of units addresses cross ventilation, solar access and privacy issues. The retention of significant trees in the front of the site adds to the streetscape and supports sufficient landscaping whereby the parties are satisfied of the requirements of the SDCP. 7. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA 18/1175, should be granted based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 1. The Court orders: 1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure 'A', and an amended cl 4.6 request for standard (height) variation, filed on 12 July 2019. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $4,250 payable within 14 days of the date of these orders. 3. The Applicant's written request pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 ("SSLEP") seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of SSLEP dated 29 April 2019 has been considered and the parties have formed the necessary opinion of satisfaction under clause 4.6(4) of SSLEP. Consequently, the Applicant's written request is well founded and should be upheld. 4. The appeal is upheld. 5. Development Application DA18/1175 to demolish the existing structures on the site, construct a residential flat building containing 31 apartments with 40 basement car parking spaces, landscaping, a roof top communal open space area and strata subdivision at 21-23 Boronia Avenue, Engadine NSW is approved subject to the conditions at Annexure "A". ……………………………. S Bish Commissioner of the Court Annexure A (367 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: 06 August 2019