Land and Environment Court New South Wales Medium Neutral Citation: Queenscliff Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1138 Hearing dates: Conciliation conference on 13 January 2020 and 25 February 2020 Date of orders: 25 March 2020 Decision date: 25 March 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: See orders at [9] Catchwords: DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 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 Development Warringah Local Environmental Plan 2011 Texts Cited: Apartment Design Guidelines Category: Principal judgment Parties: Queenscliff Developments Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/298669 Publication restriction: No Judgment 1. ACTING COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Northern Beaches Council (Council) of Development Application No DA219/0730 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to land with a total area of 1,259.8m2 and identified as Lot 41 in DP300057 and Lot 4 in DP 345419 at 71 and 71A Queenscliff Road, Queenscliff (the site). The DA, as originally submitted to Council on 9 July 2019, sought consent for demolition of existing buildings, amalgamation of the two lots and construction of a four storey residential flat building comprising 15 units, two basement levels of parking for 32 cars and landscaping works. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference, held on 13 January 2020 and 25 February 2020. The conciliation conference commenced with a view on site and immediate surroundings. At the site view oral submissions were made by a number of residents, or their representatives, the majority of whom resided in the apartment building adjoining at 75 Queenscliff Road. 4. The original DA plans prepared by PBD Architects (Issue A dated 28.06.2019) were advertised between 27 July 2019 and 10 August 2019. Those plans were subsequently amended prior to the conciliation conference. Following the conciliation conference the parties reached an agreement, based on further amendments to the plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. 5. The main changes between the "Issue A" plans as originally submitted and the "Issue C" plans the subject of the s 34 agreement are: 1. An increase in the side boundary setbacks to a minimum of 4.5 metres, and increasing to 5.0m in part to improve articulation of the west and east elevations. 2. An increase in the street boundary setback in the south-west corner on Level 3 (unit 3.04) by 5.0 metres to ensure the building complies with the 11 metre height limit in clause 4.3 of Warringah Local Environmental Plan 2011 (WLEP 2011). 3. A revision of the floor plans / unit layouts on all levels resulting in a reduced number of units, from 15 to 14, and revised unit mix. The revised unit mix results in a reduction in the number of 1 bedroom units from 2 to 1 and 2 bedroom units from 6 to 2, and an increase in the number of 3 bedroom units from 7 to 12. 1. 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. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph 7 below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters are: 1. In relation to WLEP 2011, I am satisfied that the development works are for the purpose of a residential flat building, which is a use permissible with consent in the applicable R3 Medium Density Residential zone and the development meets the objectives of that zone. I am also satisfied that the development complies with the relevant development standards for maximum floor space ratio and maximum building height. 2. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX Certificate, number 1022005M_03 dated 13 February 2020 has been provided, confirming the requirements of this SEPP have been satisfied. 3. In relation to State Environmental Planning Policy No 55—Remediation of Land ("SEPP 55"), and in particular cl 7(1) and (2), requiring consideration of any contamination and associated remediation, the parties agree that Council's records indicate that the property has been used for residential purposes for a significant period of time, with no prior land uses likely to cause contamination. On this basis they also agree that the site poses no risk of contamination and therefore no further consideration is required under clause 7(1)(b) and (c) of SEPP 55. Furthermore the conditions of consent that accompany the agreement between the parties include conditions dealing with any contamination, should that arise during the demolition or construction works. I am therefore satisfied that the requirements of SEPP 55 have been satisfied. 4. In relation to State Environmental Planning Policy No 65—Design Quality of Residential Development (SEPP 65) and the associated Apartment Design Guidelines (ADG), I note an updated Design Verification Statement prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulations 2000 and dated March 2020 has been submitted, and I am satisfied the development reasonably satisfies the aims and relevant provisions of SEPP 65 and the ADG. Disposal of proceedings in accordance with the parties' decision: 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' agreement. 2. The Court orders: 1. The applicant is granted leave to amend Development Application No. DA 2019/0730 and to rely upon the following amended plans and documents: Plan Reference Prepared by Date Architectural Plans Cover Sheet, drawing number DA000, Issue C PBD Architects 24 January 2020 Project Summary, drawing number DA001, Issue C PBD Architects 24 January 2020 Site Analysis Plan, drawing number DA003, Issue C PBD Architects 24 January 2020 Site Plan, drawing number DA004, Issue C PBD Architects 24 January 2020 Basement 2 Plan, drawing number DA100, Issue C PBD Architects 24 January 2020 Basement 1 Plan, drawing number DA101, Issue C PBD Architects 24 January 2020 Ground Floor Plan, drawing number DA102, Issue D PBD Architects 28 February 2020 Level 1 Floor Plan, drawing number DA103, Issue D PBD Architects 28 February 2020 Level 2 Floor Plan, drawing number DA104, Issue D PBD Architects 28 February 2020 Level 3 Floor Plan, drawing number DA105, Issue C PBD Architects 24 January 2020 Attic Floor Plan, drawing number DA106, Issue C PBD Architects 24 January 2020 Roof Plan, drawing number DA107, Issue C PBD Architects 24 January 2020 Elevations-01, drawing number DA200, Issue D PBD Architects 28 February 2020 Elevations-02, drawing number DA201, Issue D PBD Architects 28 February 2020 Sections-01, drawing number DA300, Issue C PBD Architects 24 January 2020 Sections-02, drawing number DA301, Issue C PBD Architects 24 January 2020 Sections-03, drawing number DA302, Issue C PBD Architects 24 January 2020 Landscape Calculation-01, drawing number DA500, Issue C PBD Architects 24 January 2020 Landscape Calculation-02, drawing number DA501, Issue C PBD Architects 24 January 2020 Deep Soil Calculation-01, drawing number DA510, Issue C PBD Architects 24 January 2020 Deep Soil Calculation-02, drawing number DA511, Issue C PBD Architects 24 January 2020 Apartment Mix Diagram, drawing number DA520, Issue C PBD Architects 24 January 2020 Apartment Mix Diagram, drawing number DA521, Issue C PBD Architects 24 January 2020 Natural Ventilation Diagram, drawing number DA530, Issue C PBD Architects 24 January 2020 Private Open Space Diagram, drawing number DA540, Issue C PBD Architects 24 January 2020 Private Open Space Diagram, drawing number DA541, Issue C PBD Architects 24 January 2020 Storage Calculation Diagram, drawing number DA550, Issue C PBD Architects 24 January 2020 Height Limit Diagram, drawing number DA560, Issue C PBD Architects 24 January 2020 Solar Study June 21st, drawing number DA600, Issue C PBD Architects 24 January 2020 Solar Study June 21st, drawing number DA601, Issue C PBD Architects 24 January 2020 Shadow Diagrams June 21st, drawing number DA602, Issue C PBD Architects 24 January 2020 Shadow Diagrams January 21st, drawing number 603, Issue C PBD Architects 24 January 2020 View Anlysis-08, drawing number DA707, Issue B PBD Architects 2 December 2019 View Analysis-09, drawing number DA708, Issue B PBD Architects 2 December 2019 Landscape Plans Landscape Master Plan, drawing number LMP, revision E Landart 23 January 2020 Landscape Planting Plan, drawing number LPP, revision E Landart 23 January 2020 Stormwater Management Plans Cover Sheet, drawing number PS01-A000, revision C Martens &Associates Pty Ltd 24 January 2020 Sediment & Erosion Control Plan, drawing number PS01-B300, revision C Martens & Associates Pty Ltd 24 January 2020 Sediment and Erosion Control Details, drawing number PS01-B310, revision A Martens & Associates Pty Ltd 26 June 2019 Drainage Plan- Basement 2, drawing number PS01-E100, revision B Martens & Associates Pty Ltd 6 December 2019 Drainage Plan- Ground Floor, drawing number PS01-E101, revision B Martens & Associates 24 January 2020 Roof Drainage Plan, drawing number PS01-E102, Revision B Martens & Associates 24 January 2020 Drainage Details- Sheet 1, drawing number PS01-E200, revision C Martens & Associates 12 December 2019 Drainage Details- Sheet 2, drawing number PS01-E201, revision A Martens & Associates 26 June 2019 On-Site Detention Catchment Plan, Model & Results, drawing number PS01-E600, revision A Martens & Associates 26 June 2019 Water Quality Catchment Plan, Model & Results, drawing number PS01-E700, revision B Martens & Associates 24 January 2020 Documents Acoustic Report Renzo Tonin & Associates 13 February 2020 Arboricultural Impact Appraisal and Method Statement Naturally Trees 14 February 2020 Geotechnical Assesment Addendum Martens 18 February 2020 Traffic Impact Assessment Report Park Transit 18 February 2020 BCA & Accessibility Statement Building Control Group 20 February 2020 BASIX Certificate Number 1022005M_03 13 February 2020 1. The appeal is upheld. 2. Development Application No. DA 2019/0730 (as amended) for demolition of existing dwellings, amalgamation of 2 lots and the erection of a 4 storey residential flat building comprising 14 units and provision of 2 levels of basement and landscaping on land identified as Lot 41 in Deposited Plan DP 300057 and Lot 4 in Deposited Plan 345419, known as 71 & 71A Queenscliff Road, Queenscliff, be approved, subject to the conditions included at Annexure 'A'. 3. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. ………………………… J Bindon Acting Commissioner of the Court Annexure A (123 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: 25 March 2020