Land and Environment Court New South Wales Medium Neutral Citation: Sunshine Hope Pty Ltd v Cumberland Council [2019] NSWLEC 1571 Hearing dates: Conciliation conference 23 October 2019; 15 November 2019 Date of orders: 26 November 2019 Decision date: 26 November 2019 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [11] Catchwords: DEVELOPMENT APPEAL – residential apartment development – heritage conservation – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Sunshine Hope Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) C McFadzean (Solicitor) (Respondent) Bartier Perry (Applicant) Cumberland Council (Respondent) File Number(s): 19/70104 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 refusal by Cumberland Council (the Respondent) of Development Application DA 2017/516 for the demolition of existing structures, adaptive reuse of an existing heritage building to accommodate 3 residential units, construction of 1 x 4 storey and 1 x 5 storey residential flat buildings to accommodate 66 residential units over two levels of basement parking and associated strata subdivision. 2. The site is legally described as Lots 3-8 in DP 220890 otherwise known as 3 Arcadia Street, Merrylands West. 3. 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 23 October 2019. The proceedings commenced onsite at which a representative of the owner's corporation from the adjoining property at 5 Todd Street provided a submission and invited the Court, in the company of the parties and experts to visit the property. 4. Following the onsite view, the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared. 5. The conciliation conference was reconvened on 15 November 2019 at which 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 15 November 2019. 6. 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. 7. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), and the Holroyd Local Environmental Plan 2013 (HLEP) and I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the following reasons: 1. Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulations requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I am satisfied the statement provided by the architect, Trevor de Waal, is consistent with the provisions of the EPA Regulations, and so satisfies cl 28(2)(b) of the SEPP 65. 2. In relation to cl 7 of the State Environmental Planning Policy No.55 – Remediation of Land, I am satisfied that the site is not known to be contaminated, and does not adjoin land known to be contaminated. 3. In accordance with cl 45 of the State Environmental Planning Policy (Infrastructure), I am satisfied that the Applicant has notified the relevant electricity supply authority in the area and considered its response. 4. The site is zoned R4 High Density Residential in which residential flat buildings are permitted with consent pursuant to the Holroyd Local Environmental Plan 2013. The objectives of the zone are as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. As the former Council chambers is listed in Schedule 5 of the HLEP as a heritage item, proposed alterations to it require development consent in accordance with cl 5.10(2) of the HLEP and I must consider the effect of the proposed alterations in accordance with cl 5.10(4) of the HLEP. As the amended plans reduce the height of the proposed development at Building A, and further amend the landscape setback between the heritage item and Building A, I consider the effect on the heritage item to be acceptable. 2. Clause 4.3 of the HLEP provides for a maximum building height of 15m. The parties are agreed that the building exceeds the height control, and the Applicant relies on a written request prepared by H-Square Global Project Services Pty Ltd dated November 2017 pursuant to cl 4.6 of the HLEP to justify the contravention of the height control. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the HLEP for the following reasons: 3. The exceedance is measured at between 450mm and 550m at the eastern most lift over run to Building A, or between 3-3.67%. 4. Compliance with the standard is unreasonable or unnecessary as the objectives of the height control are achieved, and because the area of non-compliance is limited to a small portion of the lift over run which is setback from the perimeter of the building and is not visible from the public domain, and will not result in additional overshadowing impacts. 5. Furthermore, the non-compliance does not result in additional gross floor space, and directly results from accommodating a preferred massing with respect to the heritage item. 6. The non-compliance facilitates an acceptable response to the heritage item, and is compatible with the streetscape which I am satisfied represents sufficient environmental planning grounds. 7. I am also satisfied that the proposed development is consistent with the objectives of the R4 zone, re-produced at [8(4)], and with the objectives of the height control, and so is in the public interest. 1. 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. 2. 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. 3. The Court orders: 1. The applicant is granted leave to amend Development Application No. 2017/516 and to rely upon the following amended plans and documents: Plan Reference Prepared by Date Architectural Cover Sheet, drawing number DA00, Issue for S34 Conference KANNFINCH 6 November 2019 Site Plan, drawing number DA03, Issue for S34 Conference KANNFINCH 6 November 2019 Basement 02 Part Plan West, drawing number DA04, Issue for S34 Conference KANNFINCH 6 November 2019 Basement 02 Part Plan East, drawing number DA05, Issue for S34 Conference KANNFINCH 6 November 2019 Basement 01 Part Plan West, drawing number DA06, Issue for S34 Conference KANNFINCH 6 November 2019 Basement 01 Part Plan East, drawing number DA07, Issue for S34 Conference KANNFINCH 6 November 2019 Ground Floor Building A, drawing number DA08, Issue for S34 Conference KANNFINCH 6 November 2019 Ground Floor Buildings B & C, drawing number DA09, Issue for S34 Conference KANNFINCH 6 November 2019 Levels 1 & 2 Building A, drawing number DA10, Issue for S34 Conference KANNFINCH 6 November 2019 Levels 1 & 2 Buildings B & C, drawing number DA11, Issue for S34 Conference KANNFINCH 6 November 2019 Level 3 Building A, drawing number DA12, Issue for S34 Conference KANNFINCH 6 November 2019 Level 3 Buildings B & C, drawing number DA13, Issue for S34 Conference KANNFINCH 6 November 2019 Level 4 Building A, drawing number DA14, Issue for S34 Conference KANNFINCH 6 November 2019 Level 4 Buildings B & C, drawing number DA15, Issue for S34 Conference KANNFINCH 6 November 2019 Roof Plan Building A, drawing number DA16, Issue for S34 Conference KANNFINCH 6 November 2019 Indicative Area Diagrams, drawing number DA17, Issue for S34 Conference KANNFINCH 6 November 2019 Adaptable & Universal Apartments, drawing number DA18, Issue for S34 Conference KANNFINCH 6 November 2019 Building C (Heritage) Plan, drawing number DA19, Issue for S34 Conference KANNFINCH 6 November 2019 Cross Sections, drawing number DA20, Issue for S34 Conference KANNFINCH 6 November 2019 Elevation South & North, drawing number DA22, Issue for S34 Conference KANNFINCH 6 November 2019 Elevation East & West, drawing number DA23, Issue for S34 Conference KANNFINCH 6 November 2019 Plans & Elevations – Heritage Building, drawing number DA24, Issue for S34 Conference KANNFINCH 6 November 2019 Solar Access Diagrams, drawing number DA30, Issue for S34 Conference KANNFINCH 6 November 2019 Natural Ventilation Diagrams, drawing number DA31, Issue for S34 Conference KANNFINCH 6 November 2019 View from the sun, drawing number DA32, Issue for S34 Conference KANNFINCH 6 November 2019 Indicative Shadow Diagrams – Sheet 1, drawing number DA33, Issue for S34 Conference KANNFINCH 6 November 2019 Indicative Shadow Diagrams – Sheet 2, drawing number DA34, Issue for S34 Conference KANNFINCH 6 November 2019 GFA Diagram Ground Floor, drawing number DA40, Issue for S34 Conference KANNFINCH 6 November 2019 GFA Diagram Levels 01 & 02, drawing number DA41, Issue for S34 Conference KANNFINCH 6 November 2019 GFA Diagram Level 03, drawing number DA42, Issue for S34 Conference KANNFINCH 6 November 2019 GFA Diagram Level 04 & Carparking, drawing number DA43, Issue for S34 Conference KANNFINCH 6 November 2019 Long Sections Though Ramp – Inside Edge, drawing number SK01, Issue for S34 Conference KANNFINCH 6 November 2019 Long Section Though Ramp – Outside Edge, drawing number SK02, Issue for S34 Conference KANNFINCH 6 November 2019 Long Section Though Internal Ramp, drawing number SK03, Issue for S34 Conference KANNFINCH 6 November 2019 Landscaping Site Analysis, drawing number LPS34 19-07 1, revision K Conzept Landscape Architects 6 November 2019 Landscape Plan 01, drawing number LPS34 19-07 2, revision K Conzept Landscape Architects 6 November 2019 Landscape Plan 02, drawing number LPS34 19-07 3, revision K Conzept Landscape Architects 6 November 2019 Landscape Plan 03, drawing number LPS34 19-07 4, revision K Conzept Landscape Architects 6 November 2019 Landscape Plan 04 [Level 4], drawing number LPS34 19-07 5, revision J Conzept Landscape Architects 30 October 2019 Specification & Details, drawing number LPS34 19-07 6, revision H Conzept Landscape Architects 30 October 2019 Specification & Details, drawing number LPS34 19-07 7, revision B Conzept Landscape Architects 30 October 2019 Stormwater Management Cover Sheet, Notes & Legend, drawing number 000, Issue C Australian Consulting Engineers 6 November 2019 Stormwater Layout Plan - Basement Level 2 - Sheet 1 of 2, drawing number 101, Issue C Australian Consulting Engineers 6 November 2019 Stormwater Layout Plan - Basement Level 2 - Sheet 2 of 2, drawing number 102, Issue C Australian Consulting Engineers 6 November 2019 Stormwater Layout Plan - Basement Level 1, drawing number 103, Issue C Australian Consulting Engineers 6 November 2019 Stormwater Layout Plan – Ground Level, drawing number 104, Issue C Australian Consulting Engineers 6 November 2019 Combined OSD / WSUD Details and Calculation Sheets – Sheet 1 of 3, drawing number 105, Issue C Australian Consulting Engineers 6 November 2019 Combined OSD / WSUD Details and Calculation Sheets – Sheet 2 of 3, drawing number 106, Issue C Australian Consulting Engineers 6 November 2019 Combined OSD / WSUD Details and Calculation Sheets – Sheet 3 of 3, drawing number 107, Issue C Australian Consulting Engineers 6 November 2019 Miscellaneous Details Sheet, drawing number 108, Issue C Australian Consulting Engineers 6 November 2019 Sediment & Erosion Control Plan, drawing number 109, Issue C Australian Consulting Engineers 6 November 2019 Document Reference Prepared by Date Section 34 - Schedule of Amendments KANNFINCH 6 November 2019 Storage Schedule KANNFINCH 6 November 2019 Stormwater and On Site Detention Drawing Submission Checklist Anthony Hasham 6 November 2019 Traffic Engineering Letter Varga Traffic Planning Pty Ltd 6 November 2019 Revised Arboricultural Impact Assessment Lee Hancock Consulting Arborist 6 November 2019 BASIX Certificate number 880635M_06 Outsource Ideas P/I 8 November 2019 1. The Applicant's clause 4.6 request, prepared by H-Square Global Project Services Pty Ltd and dated November 2017, for a variation of the Height of Buildings development standard under clause 4.3 of the Holroyd Local Environmental Plan 2013, is upheld. 2. The Applicant is to pay the Respondent's costs pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is upheld. 4. Development Application No. 2017/516 (as amended) for part demolition of existing structures, adaptive reuse of an existing heritage building to accommodate 3 residential units, construction of 1 x 4 storey and 1 x 5 storey residential flat buildings to accommodate 66 residential units over two levels of basement parking and associated strata subdivision on Lots 3-8 in Deposited Plan 220890, otherwise known as 3 Arcadia Street, Merrylands West, be approved subject to the conditions included at Annexure "A". ………………………. T Horton Commissioner of the Court Annexure A (465 KB) Plans (4.29 MB) ********** 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: 27 November 2019