Land and Environment Court New South Wales Medium Neutral Citation: Highbury Group Pty Ltd v North Sydney Council [2019] NSWLEC 1487 Hearing dates: Conciliation conference on 9 October 2019 Date of orders: 15 October 2019 Decision date: 15 October 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that: (1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure "A". (2) The appeal in respect of the property known as 58-60 Aubin Street, Neutral Bay, is upheld. (3) Development Application DA 176/18 for lot consolidation, demolition of the existing structures and construction of a four (4) storey residential flat building, car parking and associated works at 58-60 Aubin Street, Neutral Bay, is approved subject to the conditions at Annexure "A". Catchwords: DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 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 (Vegetation in Non-Rural Areas) 2017 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Apartment Design Guide North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Highbury Group Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Kondilios with C Montague (Solicitors) (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Hall & Wilcox Lawyers (Respondent) File Number(s): 2018/351210 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Highbury Group Pty Ltd (the Applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by North Sydney Council (the Council) of Development Application No. DA 176/18 (the application). 2. The application as lodged sought consent under the EPA Act for lot consolidation, demolition of existing structures comprising 2 semi-detached dwellings, and construction of a 4 storey residential flat building (RFB), car parking and associated works at 58-60 Aubin Street, Neutral Bay (the site). 3. The application was notified and 35 objections were received. Concerns raised included: the overdevelopment of the site; height, bulk and scale (including breach of the Council's height plane controls); the proposed setbacks; impacts on traffic, street parking, the local sewer line and on adjoining properties (including in terms of view loss, overshadowing, privacy, noise, and during excavation and construction); streetscape impacts; and heritage impacts with the loss of the existing dwellings on the site. 4. In the Statement of Facts and Contentions filed by the Council, contentions raised by the Council regarding the application included the design, local context and character of the development, the proposed landscaping, setbacks and building separation and the resultant adverse impacts on neighbours, including overshadowing, overlooking, and view loss. Concerns were also raised that the development would impact the ability for future redevelopment of 54-56 Aubin Street, and would have adverse amenity impacts for future occupants. 5. A conciliation conference was held under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). However, the parties could not come to an agreement and the conciliation was terminated and the matter set down for hearing. 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 to address the Council's contentions having regard also to issues raised by objectors. This included a view impact assessment being undertaken from adjoining properties. 7. On August 2, 2019 the Court granted leave for the Applicant to rely on amended plans. These plans were notified and 31 objections were received raising similar concerns to those raised with the original application. 8. The parties engaged expert planners to prepare a Joint Expert Report which was filed in the proceedings based on the revised plans. The planners agreed that, subject to some further minor amendments, the Council contentions would be resolved. These amendments were undertaken and the revised plans made available for viewing by objectors. 9. Given no contentions remained, the parties requested that the hearing be adjourned and the matter be again listed as a conciliation conference under s 34(1) of the LEC Act. I presided over that conciliation which commenced onsite where the Court and parties heard from several objectors and viewed the site from a number of their properties. 10. One objector provided the Court with a letter which had been filed with the Council the preceding week requesting that the dwellings on the site, and adjoining dwellings at 54-56 Aubin Street (comprising the group of 4 semi-detached dwellings), be the subject of an Interim Heritage Order (IHO) under the Heritage Act 1977 to enable time for more detailed investigation of their heritage value based on the findings of a preliminary report commissioned by objectors which indicated such value may exist. 11. Following the site view, the Council advised that there was no Council resolution in terms of agreement to the objector's IHO request and the parties had otherwise reached an agreement under s 34(3) of the LEC Act based on the revised plans. The parties accordingly sought orders in accordance with that agreement which was subsequently filed and the hearing vacated. 12. As the presiding Commissioner, I am required under s 34(3) of the LEC Act to be satisfied only that the decision sought by the parties is one that the Court could make in the proper exercise of its functions. If satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 13. I am therefore not required to, and cannot, 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. 14. 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. 15. In this regard, the parties provided a Summary of Jurisdictional Matters (SoJM) confirming why the agreement is lawful and why the appeal should be upheld. The following includes information provided in the SoJM. 16. The site is zoned R4 High Density Residential under the North Sydney Local Environmental Plan 2013 (the LEP) and RFBs are permissible in the R4 zone with development consent. The objectives of the R4 zone at cl 4.3 of the LEP are also met and therefore the development is considered to be in the public interest, noting the zoning supports RFB development. Further, the application had been amended to reduce the extent of the upper level and thus reduce view impacts to neighbouring properties. 17. The development complies with the maximum height permissible under cl 4.3 of the LEP and no Floor Space Ratio applies. The Council has also considered the earthworks provisions at cl 6.10. In this regard, geotechnical advice was provided indicating how the excavation could be confined to the site boundaries. Conditions of consent also require approval of the proposed excavation method as well as pre-construction and post-construction dilapidation surveys of, and reports on, potentially affected adjoining dwellings. 18. Clause 6.12 of the LEP is as follows: 6.12 Residential flat buildings (1) The objective of this clause is to ensure that dwelling houses or dual occupancies will not be left isolated on sites that are not reasonably capable of development for residential flat buildings. (2) This clause applies to land in Zone R4 High Density Residential. (3) Development consent must not be granted for development for the purposes of a residential flat building if the development will result in a single dwelling house or dual occupancy being located on adjoining land in Zone R4 High Density Residential unless: (a) the adjoining land is at least 900 square metres, or (b) the consent authority is satisfied that the adjoining land is land on which development may be carried out for the purposes of a residential flat building. 1. Plans were provided showing how 54-56 Aubin Street could be developed for an RFB and consent to the application would therefore not result in the isolation of this adjoining land. It was also noted that 54 and 56 Aubin Street are in fact semi-detached dwellings and do not therefore comprise either a single dwelling house or a dual occupancy to which cl 6.12 applies. The site is otherwise not adjoined by either a dual occupancy or a single dwelling house. 2. The application is required to 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). In this regard, a revised Design Verification based on the revised plans as required by SEPP 65 was filed with the agreement. 3. Engineering advice was provided indicating that the development would not impact existing sewer and water infrastructure, and conditions of consent require that a section 73 certificate be obtained from Sydney Water requiring connection to Sydney Water infrastructure. Sydney Water will also be required to approve the building plans. Construction and Traffic Management Plans are also required by consent conditions. 4. The development was amended to address the merit concerns raised by the Council and the issues raised by objectors to the extent they were relevant considerations and considered reasonable, including in terms of view sharing. The Council indicated satisfaction in terms of the compliance of the amended application with the design requirements of SEPP 65, the ADG and the North Sydney Development Control Plan 2013. 5. The Council advised that, in terms of consideration of the heritage values of the group of dwellings proposed by residents to be the subject of the IHO, these buildings had previously been the subject of a proposal for inclusion within a heritage conservation area and this had not been supported by the Council. Nor is the site or the group listed as an item of heritage value in the LEP. 6. 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. In this regard, the site is currently occupied by residential dwellings and has a history of residential land use. The proposal does not seek to alter the categorisation of land use and the Council records do not indicate that the site has been developed or used for activities that may cause contamination. 7. The parties have considered the relevant matters for consideration under Part 3 Division 2 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, as well as the relevant provisions of State Environmental Planning Policy (Coastal Management) 2018 and State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. I am satisfied that the proposed development is consistent with the requirements of these policies. 8. An updated BASIX Certificate was provided to comply with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 9. Accordingly, the Court orders that: 1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure "A". 2. The appeal in respect of the property known as 58-60 Aubin Street, Neutral Bay, is upheld. 3. Development Application DA 176/18 for lot consolidation, demolition of the existing structures and construction of a four (4) storey residential flat building, car parking and associated works at 58-60 Aubin Street, Neutral Bay, is approved subject to the conditions at Annexure "A". …………………………. Jenny Smithson Commissioner of the Court Annexure A (241 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: 15 October 2019