Land and Environment Court New South Wales Medium Neutral Citation: LNR Sons Pty Ltd v Cumberland Council [2020] NSWLEC 1157 Hearing dates: Conciliation conference on 20 March 2020 Date of orders: 03 April 2020 Decision date: 03 April 2020 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [8] 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 Regulation 2000 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 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 Apartment Development Category: Principal judgment Parties: LNR Sons Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: J Smith (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: Centurion Lawyers Pty Ltd (Applicant) Cumberland Council (Respondent) File Number(s): 2019/37809 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the refusal by Cumberland Council of its development application DA/2017/414/1. The development application seeks consent for demolition of structures and the construction of a residential flat building comprising 11 units. The development is proposed at 105 Military Road, Guilford (Lot B in DP 416198). 2. On 28 September 2017, the Applicant lodged a development application with Cumberland Council. The Cumberland Local Planning Panel refused the development application on 8 August 2018; the Applicant is appealing that refusal. 3. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 30 September 2019. By consent of the parties a further conciliation conference was held on 20 March 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application. 4. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application. 2. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land I have given consideration to the potential contamination of the land. I accept the parties' agreement that: 1. the land is not within an investigation area; 2. development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the land; and 3. historic zoning controls for the land did not make lawful the carrying out of activities nominated in Table 1. 1. Consistent with cl. 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted [718282M_04]. 2. The amended development application no longer proposes reliance on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009. 3. The development is required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and the provisions of the Environmental Planning and Assessment Regulation 2000 ('Regulation'). The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation: Registered architect number: 8977. 4. The site is subject to the provisions of the Holroyd Local Environmental Plan 2013 (LEP 2013) and is zoned R4 High Density Residential. Residential Flat Buildings is a permissible use with consent. Demolition is permissible pursuant to cl. 2.7. 5. Clause 4.4 provides for a maximum floor space ratio of 1.2:1. The proposed FSR of 1.14:1 complies with the permitted FSR. 6. The Applicant relies on the provisions of cl 4.6 of LEP 2013 to vary the development standard for maximum height from 15m to 15.87m to accommodate access and shading to the roof top terrace. 7. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2013 prepared by Think Planners. I have reviewed the request and I am satisfied that: 1. The written request demonstrates that compliance with the Height development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2013). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b) of LEP 2013). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2013 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the zone and the development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2013 are met. 5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 6. The states of satisfaction required by cl 4.6 of the LEP 2013 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control. 1. Clause 6.3 requires the consent authority to be satisfied of access to various essential services for the development. I accept the agreement of the parties that essential services are available or can be made available. 2. The site is marked on the Salinity Map (clause 6.8 of LEP 2013) as having "moderate salinity potential". In relation to clauses 6.8(3) and 6.8(4), I accept the agreement of the parties that: 1. the development is not likely to have any impact on salinity processes on the land; 2. salinity is not likely to have an impact on the development in any meaningful way; and 3. conditions of consent, may be imposed to avoid, minimise or mitigate salinity related impacts. 1. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 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, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court are: 1. The applicant is granted leave to amend Development Application No. 2017/414/1 and to rely upon the following amended plans and documents: Drawing No. Title Prepared By Date 03 Rev F Site Plan Baini Design Jan'20 05 Rev F Demolition Plan 06 Rev F Basement Plan 07 Rev F Ground Floor 08 Rev F First Floor Plan 09 Rev F Second Floor Plan 10 Rev F Third Floor Plan 11 Rev F Fourth Floor Plan 12 Rev F Roof Plan 13 Rev F North – South Elevations 14 Rev F East – West Elevations 15 Rev F Sections 16 Rev F External Colours & Finishes 17 Rev F External Colours & Finishes 18 Rev F Materials & Finishes Schedule SW645-1 Rev D Construction Notes & Standard Details Wehbe Consulting 11/02/2020 SW645-2 Rev D Roof Layout & Stormwater Details SW645-3 Rev C Stormwater Site Layout 12/09/2019 SW645-4 Rev D Basement Layout 11/02/2020 SW645-5 Rev D Stormwater Details 1366.L.01 Rev C Landscape Plan – Ground Floor Greenland Designs 20/02/2020 1366.L.02 Rev C Landscape Plan-Level 3 1366.L.03 Rev C Landscape Plan – Roof Terrace 1366.L.04 Rev C Landscape Details & Specification Document Prepared by Date Aboricultural Impact and Tree Management Plan Horticultural Management Services 29 July 2019 BASIX Certificate No. 718282M_04 Aclaim Town Planning 17 Febraury 2020 Clause 4.6 Varaition: Building Height Think Planners 30 September 2019 1. The Applicant is to pay the Respondent's costs pursuant to 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $1,800, within 28 days. 2. The applicant's clause 4.6 request, prepared by Think Planners and dated 30 September 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. 2017/414/1 for demolition of existing structures and the construction of a residential flat building comprising 11 units at Lot B in Deposited Plan 416198, otherwise known as 105 Military Road, Guildford, is approved subject to the conditions included at Annexure "A". ………………………… D M Dickson Commissioner of the Court Annexure A (201 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 April 2020