3MAV Pty Ltd v Northern Beaches Council [2021] NSWLEC 1670

Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 3MAV Pty Ltd v Northern Beaches Council [2021] NSWLEC 1670 Hearing dates: Conciliation conference on 22 October 2021 Date of orders: 08 November 2021 Decision date: 08 November 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court Orders that : (1) The Applicant is to pay the Respondent ’ s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1,000.00 within 28 days of the orders being made by the Court. (2) The appeal is upheld. (3) Development consent is granted to Development Application No DA 2020/0903 for the partial demolition of the existing structures and construction of a shop top housing development on land at 62 Old Barrenjoey Road, Avalon Beach NSW, subject to the conditions of consent contained at Annexure “ A ” . Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000 , cll 55, 92, 98, 143A Home Building Act 1989 Land and Environment Court Act 1979, s 34 Pittwater Local Environmental Plan 2014 , cll 2.7, 4.1, 4.2, 4.3, 4.4, 5.10, 5.21, 7.1, 7.2, 7.4, 7.10 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 64—Advertising and Signage State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007, cl 45 Texts Cited: AS 2601 - 1991: The Demolition of Structures Building Code of Australia Category: Principal judgment Parties: 3MAV Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Hanna (Solicitor) (Applicant) J Simpson (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) Northern Beaches Council (Respondent) File Number(s): 2021/218029 Publication restriction: No Judgment COMMISSIONER : Th is is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an a ppeal against the actual refusal of a development application DA 2020/0903 seeking development consent for alterations and additions to an existing retail premise to construct a shop top housing development (the Proposed Development) at 62 Old Barrenjoey Road, Avalon Beach NSW 2107 legally described as Lot C DP 399767 (the Site). 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 22 October 2021 . I presided over the conciliation conference. At the conciliation conference, 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 development consent to the development application subject to conditions. 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. During the course of the proceedings, the Applicant has provided the Respondent with amended plans to address the reasons for refusal set out in the Respondent ’ s Notice of Determination dated 9 March 2021. The parties agree that the Development Application , as amended, warrant s development consent. The Respondent has lodged the amended material on the Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) . The Development Application (as amended) seeks approval for the partial demolition of the existing structures and removal of the existing roof of the retail shop , and construction of a shop top housing development comprising: One ground floor commercial/shop premises, First and second floors with 2 residential double storey apartments with carparking on the Site . There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the Pittwater Local Environmental Plan 2014 (PLEP) and the provisions of a number of state environmental planning policies of relevance contained in s 4.15 of the EPA Act. The parties explained how the jurisdictional prerequisites have been satisfied and filed Agreed Jurisdictional Submission on 11 October 2021 signed by both parties . I reproduce the relevant jurisdictional matters below. Jurisdictional Matters The jurisdictional prerequisites contained in s 4.15 of the EPA Act of relevance to the proceedings are as follows . Landowner’s Consent The landowner of the S ite on which the development is proposed provided its consent to the Development Application when it was lodged. This was done by way of a declaration on the prescribed development application form on the Planning Portal. Notification Requirements The Development Application was appropriately notified by the Respondent pursuant to the EPA Act, between 21 August 2020 and 4 September 2020. No submissions were made to the Respondent in response to the notification. Environmental Planning Instruments – s 4.15 – s 4.15(1)(a) EPA Act State Environmental Planning Policy No 65— Design Quality of Residential Apartment Development (SEPP 65) Clause 4 of SEPP 65 provides that: (1) This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if: (a) the development consists of any of the following: (i) the erection of a new building, (ii) the substantial redevelopment or the substantial refurbishment of an existing building, (iii) the conversion of an existing building, and (b) the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and (c) the building concerned contains at least 4 or more dwellings. The P roposed D evelopment is for a three storey shop top housing development with a single retail premise and two residential dwellings. As the proposal does not contain 4 or more dwellings, the proposal does not meet any of the provisions under Part 4(1A) of SEPP 65, and this policy does not apply. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) Clause 7 of SEPP 55 requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. As outlined in the Statement of Environmental Effects prepared in support of the Development Application by Myriad Consulting, the Site has been historically used as residential accommodation and there is no evidence of potentially contaminating activities having occurred on Site, in this case. Accordingly, there is no need to carry out a preliminary site investigation and the consent authority can be satisfied that the land is not contaminated and cl 7 of SEPP 55 has been considered and addressed. State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64) The D evelopment A pplication does not include signage at this point, and any 1 x 0.5m sign located on the front fa çade would be around 0.5m 2 and can be classified as exempt development. As such an assessment of SEPP 64 is not required. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) Clause 45 (1)(b) of SEPP Infrastructure requires the c onsent a uthority to give written notice to the electricity supply authority for the area in which the development is to be carried out before determining a development application which is : within or immediately adjacent to an easement for electricity purposes ( whether or not the electricity infrastructure exists), or immediately adjacent to an electricity substation, or within 5m of an exposed overhead electricity power line . The Development Application was referred to Ausgrid and standard conditions were recommended, which have been included in the proposed conditions of consent. Pittwater Local Environmental Plan 2014 (PLEP) The S ite is zoned B2 Local Centre pursuant to PLEP. The proposed development for shop housing is permissible with consent within the B2 Local Centre zone. The parties agree that th e P roposed D evelopment meets the objectives of the B2 zone. The provisions of cl 2.7 of PLEP are applicable to the proposal, and the D evelopment A pplication seeks consent for the proposed demolition. The provisions of cl l 4.1 and 4.2 of PLEP are not applicable to the P roposed D evelopment. Clause 4.3 of PLEP related to the height of buildings and contains the maximum height control for the subject site. P ursuant to cl 4.3(2), the maximum permissible height for the Site is 8.5m. In accordance with cl 4.3(2A) of PLEP, the proposed height may exceed the maximum permissible height of 8.5m but must not be more than 8m above the flood planning level. The maximum proposed height is 8m above the flood planning level, as required by cl 4.3 of PLEP, and according t he proposal has been designed with form and presents under the maximum height limit and complies with the maximum height development standard at ground level and at the flood planning level. Clause 4.4 of PLEP contains the maximum floor space controls. A m aximum floor space ratio has not been nominated for the land by PLEP. Clause 5.10 of PLEP which relates to heritage conservation , applies to the S ite . A lthough the S ite is not identified as containing a heritage item, it is located within the vicinity of Heritage Items at 47 Old Barrenjoey Road and 25, 29 and 33 Avalon Parade. T he parties agree that the proposal does not impact any of the heritage items notwithstanding that the Site is located within close proximity to the identified heritage items . Clause 5.21 of PLEP provide flood planning controls and applies as the Site has been identified as being located within a low and medium risk flood precinct. The proposal has been designed to have a minimum floor level for the majority of the ground floor of RL63 above the minimum flood level plus 500mm freeboard. The P roposed D evelopment has been designed to comply with the flood levels for the S ite. The floor levels have been raised accordingly and sufficient drainage provisions have been incorporated. Clause 7.1 of PLEP addresses Acid Sul f ate Soils however the provisions do not apply to the proposal as the S ite is not identified as being potentially affected by Acid Sulfate Soils under the P LEP. N o earthworks are proposed as part of the D evelopment A pplication (c l 7.2 of PLEP ). Clause 7.4 of PLEP provides for floodplan management and the Development A pplication is accompanied by stormwater drainage plans. These plans have been designed with the intent of ensuring that any stormwater generated by the development will be appropriately managed and accordingly this clause is considered to be satisfied . T he S ite is currently serviced by water, electricity, sewer and stormwater infrastructure, as well as direct vehicular access, as required by the clause, and where necessary, such services can be upgraded to meet any additional demands generated by the proposal and these satisfy the provisions of cl 7.10 of the PLEP regarding essential services . The P roposed D evelopment does not contravene any development standards in PLEP. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX C ertificate has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument. EPA Regulation – s 4.15(1)(a)(iv) of the EPA Act Part 6 Division 8A of the EPA Regulation requires the consent authority to consider "Prescribed conditions" of development consent. These matters are addressed via a pplicable condition s of consent. Clause 92 of the EPA Regulation requires the consent authority to consider AS 2601 - 1991: The Demolition of Structures. These matters are addressed via a condition of consent. Clause 98 of the EPA Regulation requires the consent authority to consider insurance requirements under the Home Building Act 1989 . This matter is addressed via a condition of consent. Clause 98 of the EPA Regulation requires the consent authority to consider the provisions of the Building Code of Australia (BCA). This matter is addressed via a condition of consent. Clause 143A of the EPA Regulation 2000 requires the submission of a design verification certificate from the building designer prior to the issue of a Construction Certificate. This matter is addressed via a condition of consent. Subsections 4.15(1)(b)-(e) of the EPA Act The parties agree that: For the purposes of s 4.15(1)(b) , the likely impacts of the development are acceptable , in particular, the proposed development will not have a detrimental social impact or economic impact in the locality considering the nature of the existing and proposed land use . For the purposes of s 4.15(1)(c) , the Site is suitable for the development. For the purposes of s 4.15(1)(d ), no submissions were received in relation to the Development Application. For the purposes of s 4.15(1)(e) , there is no relevant matter arising out of the consideration of the public interest that would require the refusal of the Development Application. Findings and conclusion I am satisfied that the parties ’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties . 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. The Court notes: T he Applicant has amended the application with the consent of the Northern Beaches Council pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 . The following amended application was uploaded to the NSW Planning P ortal on 28 September 2021 comprising the following amended plans otherwise referred to in Condition 2 of Annexure “ A ” : Architectural Plans Drawing No. Dated Prepared By A102/ Revision B 8 July 2021 AUDAA A103/ Revision B 8 July 2021 AUDAA A104/ Revision B 8 July 2021 AUDAA A105/ Revision B 8 July 2021 AUDAA A106/ Revision B 8 July 2021 AUDAA A107/ Revision B 8 July 2021 AUDAA A108/ Revision B 8 July 2021 AUDAA A109/ Revision B 8 July 2021 AUDAA A110/ Revision B 8 July 2021 AUDAA A111/ Revision B 8 July 2021 AUDAA A112/ Revision B 8 July 2021 AUDAA A113/ Revision B 8 July 2021 AUDAA A123/ Revision B 8 July 2021 AUDAA • Traffic and Parking Assessment Report prepared by Varga Traffic Planning Pty Ltd, dated 11 August 2021. The following additional amended material was uploaded onto the NSW Planning Portal on 8 October 2021: BASIX Certificate prepared by Sustainability-Z Pty Ltd; NatHERS Certificate No 0006643522; SectionJ Report prepared by Sustainability-Z Pty Ltd. The portal reference number for the amended development application is PEH-799. The following amended material was uploaded to the NSW Planning portal on 29 October 2021 reference PEH-843 Landscape Plans Drawing No. Dated Prepared By L_1/ Revision B 2 July 2021 Wallman Partners L_2/ Revision B 2 July 2021 Wallman Partners That the Applicant has subsequently filed the amended application with the Court on 7 October 2021 , 8 October 2021 and 29 October 2021 . The Respondent is to register the Court ’ s Judgment in this matter on the NSW Planning Portal within 14 days from the date of Judgment The Court Orders that: The Applicant is to pay the Respondent ’ s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1 , 000 .00 within 28 days of the orders being made by the Court. The appeal is upheld . Development consent is granted to Development Application No DA 2020/0903 for the partial demolition of the existing structures and construction of a shop top housing development on land at 62 Old Barrenjoey Road, Avalon Beach NSW, subject to the conditions of consent contained at Annexure “ A ” . ………………………. E Espinosa Commissioner of the Court Annexure A (313485, pdf) Architectural Plans (8038865, pdf) Landscape Plans (606158, 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: 08 November 2021