Land and Environment Court New South Wales Medium Neutral Citation: Bazouni v Cumberland Council [2019] NSWLEC 1584 Hearing dates: Conciliation conference on 3 October 2019; 28 October 2019; 15 November 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [10] below Catchwords: DEVELOPMENT APPEAL – residential apartment development – affordable housing – conciliation conference – agreement between the parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Texts Cited: Holroyd Development Control Plan 2013 Category: Principal judgment Parties: Louie Bazouni (First Applicant) Ramza Bazouni (Second Applicant) Cumberland Council (Respondent) Representation: Counsel: Dr J Smith (Applicants) C McFadzean (Solicitor) (Respondent) Solicitors: Centurion Lawyers (Applicants) Cumberland Council (Respondent) File Number(s): 2019/39428 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 2018/77/1 for the demolition of existing structures, consolidation of two lots into one and the construction of a residential flat building comprising 17 units. 2. The site is legally described as Lot A and Lot B in DP 419270, otherwise known as 67-69 Clyde Street, Guildford. 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 3 October 2019. The proceedings commenced onsite, after which 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. 4. 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 20 November 2019. 5. 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. 6. 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. 7. 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 (Affordable Rental Housing) 2009, 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. The site is zoned R4 High Density Residential in which residential flat buildings are permitted with consent, and wherein the objectives are in the following terms: 1 Objectives of zone • 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 proposed development includes six affordable housing units, I am satisfied that the development can benefit from a floor space ratio (FSR) bonus of 0.33:1 in excess of that permitted by cl 4.4 of the HLEP. 2. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulations 2000 (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 rely on the statement provided by the architect, Ben Vitale, in relation to the provisions of the EPA Regulations, and to satisfy cl 28(2)(b) of SEPP 65. 3. 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. 4. 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 Think Planners dated 15 November 2019 pursuant to cl 4.6 of the HLEP to justify the contravention of the height control, wherein the objectives are as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows— (a) to minimise the visual impact of development and ensure sufficient solar access and privacy for neighbouring properties, (b) to ensure development is consistent with the landform, (c) to provide appropriate scales and intensities of development through height controls. 1. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the HLEP for the following reasons: * The exceedance is measured at 810mm in height at the lift over run, and has an exceedance of 550mm for a portion of the topmost roof. * 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 upper level roof form and lift over run, which are setback from the perimeter of the building which will limit the visual impact from the public domain. * Furthermore, by incorporating six affordable dwellings, the proposed development is permitted to exceed the FSR control set out at cl 4.4 of the HLEP, while remaining substantially within the height control at cl 4.3 of the HLEP which is designed to accommodate a building of a lesser FSR. * The non-compliance facilitates suitable separation and setbacks to adjoining properties ranging from 4m at the ground floor to 9m at level 4 which exceed those required by the Holroyd Development Control Plan 2013 and contribute to a preferred character while minimising the visual bulk and overshadowing that would otherwise occur, which I am satisfied represents sufficient environmental planning grounds. * Finally I am satisfied that the proposed development is in the public interest as it is consistent with the objectives of the particular standard, and the objectives of the R4 zone, re-produced above. 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 DA 2018/77/1 and to rely upon the following amended plans and documents: Drawing No. Title Prepared by Date 03 Rev E Site Plan Baini Design 31/10/2019 04 Rev E Basement/Lower Basement 05 Rev E Ground floor/Level 1 06 Rev E Level 2/Level 3 07 Rev E Level 4 08 Rev E Elevations 09 Rev E Fence Details/ Sections 10 Rev E Roof Plan & Demolition Plan & Streetscape 11 Rev E External colours & Finishes 12 Rev E Elevations – External Colours & Finishes 13 Rev E Elevations – External Materials & Finishes SW836-1 Rev D Construction Notes & Standard Details Wehbe Consulting 11/11/2019 SW-836-2 Rev D Roof Layout SW-836-3 Rev D Level 3 & 4 Floor Layout SW-836-4 Rev D Level 1 & 2 Floor Layout SW-836-5 Rev D Stormwater Site Layout SW-836-6 Rev D Basement 1 Layout SW-836-7 Rev D Basement 2 Layout LP01 Rev C Landscape Plan for Development Application JALA Designs 27/8/2019 LP02 Rev C Landscape Plan for Development Application Document Prepared by Date Noise Assessment Report Acoustic Consulting Engineers 10/9/2019 Traffic and Parking Impact Assessment Stanbury Traffic Planning September 2019 Clause 4.6 Variation Think Planners 15 November 2019 1. The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Applicant's clause 4.6 request, prepared by Think Planners and dated 15 November 2019, for a variation of the height of buildings development standard under clause 4.3 of the Holroyd Local Environmental Plan 2013 is upheld. 3. The appeal is upheld. 4. Development Application No.2018/77/1 (as amended) for demolition of existing structures, consolidation of two lots into one and the construction of a residential flat building comprising 17 units at Lots A and B in Deposited Plan 419270, otherwise known as 67-69 Clyde Street, Guildford, is approved subject to the conditions included at Annexure 'A'. ………………………….. T Horton Commissioner of the Court Annexure A (230 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: 04 December 2019