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Tuyute Pty Ltd v Northern Beaches Council [2021] NSWLEC 1083 (18 February 2021)

Last Updated: 18 February 2021

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Northern Beaches Council (the Respondent) of Development Application No. DA2019/0663 seeking consent for demolition works and the construction of a shop-top housing development, comprising retail and residential units with associated car parking and landscaping at 515 Pittwater Road, Brookvale otherwise known as Lot D in DP 410277 (the site).
2. 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 initially held on 16 October 2020. I presided over the conciliation conference.
3. 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 conditional development consent to the development application.
4. As the parties required time to prepare amended plans and other documents consistent with the in principle agreement, I adjourned the conciliation on a number of occasions.
5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 December 2020.
6. The parties ask me to approve their decision as set out in the s34 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 s34 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [26]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
8. The site is located within a B5 Business Development zone according to the Warringah Local Environmental Plan 2011 (WLEP) in which residential accommodation is permitted by virtue of cl 2.5 of the WLEP, schedule 1 which provides that a site shown in Area 5 on the additional permitted use map permits shop top housing.
9. The objectives of the B5 zone are as follows:

• To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.
• To provide for the location of vehicle sales or hire premises.
• To create a pedestrian environment that is safe, active and interesting by incorporating street level retailing and business uses.

10. It is commonly held by the parties that the proposed development does not comply with the height of building development standard at cl 4.3 of the WLEP, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the WLEP, authored by Mr Joe Vescio from JVUrban and dated 2 November 2020 (written request).
11. The exceedance of the standard is measured at 13.4m, being 2.4m above the maximum height of building standard of 11m.
12. The written request identifies three grounds on which compliance with the standard is unreasonable or unnecessary, including:
    • The underlying objectives or purpose of the standard are achieved not withstanding the non-compliance;
    • The objectives of the standard are not relevant, and
    • The development standard has been virtually abandoned by the Respondent’s own actions.
13. The objectives of the standard at cl 4.3 of the WLEP are in the following terms:

(a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development,
(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access,
(c) to minimise any adverse impact of development on the scenic quality of Warringah’s coastal and bush environments,
(d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities.

14. I am satisfied that compliance with the standard is unreasonable or unnecessary for the reasons set out in the written request. In particular I note the analysis of the existing built form in the vicinity of the site on p 9 of the written request and I accept that a compliant building envelope would be out of character with existing and approved development in the immediate area. I also accept that skilful design techniques minimise the visual impact, disruption of views, loss of privacy or solar access.
15. I am also satisfied that the uppermost storey that is the cause of the non-compliance, is set back from the boundary to minimise overlooking and provide for solar access, natural light and ventilation to the adjoining property at 517 Pittwater Road which may be considered sufficient environment planning grounds in accordance with cl 4.6(3)(b) of the WLEP.
16. I also conclude that the proposed development is in the public interest given consistency with the objectives of the standard at cl 4.3 of the WLEP at [13], and the zone as set out at [9], and the Secretary’s concurrence may be assumed. In arriving at this conclusion, I consider the proposed development to have taken deliberate steps to conform to, and replicate, the height of the existing built form when viewed from Pittwater Road.
17. I note that the site is not identified on the Acid Sulfate Soils map at cl 6.1 of the WLEP.
18. I also note the Applicant relies upon a Geotechnical Investigation prepared by GK Technics dated 27 June 2018, and a Geotechnical Opinion by the same author, dated 17 November 2020 which concludes that site-specific, sub-surface investigation is required following demolition of the existing building. On this basis I am satisfied in respect of those matters set out in cl 6.2 in WLEP.
19. In respect of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), the Applicant relies upon an Environmental Site Assessment prepared by Environmental Investigation Services dated 26 June 2018, which concludes that the site can be made suitable for the proposed development. I also note that proposed conditions of consent require further investigation and remediation in circumstances set out in Condition 21.
20. For development applications referrable to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), s 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) requires that a qualified designer, being defined at s 3 of the EPA Regulations as a person registered under the Architects Act 2003, must provide the consent authority, or the Court on appeal, with an attestation that they designed, or directed the design of the development.
21. Furthermore, the attestation must address the design quality principles in Schedule 1 of SEPP 65, and demonstrate, in terms of the Apartment Design Guide (ADG), how the objectives in Parts 3 and 4 of that guide have been achieved.
22. I am satisfied that the design statement prepared by Ms Allana Afshar (Architects Registration No. 9052) dated 7 December 2020 is in a complying form.
23. As Pittwater Road is a classified road, the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) apply. Relevantly, no vehicular access is proposed off Pittwater Road in accordance with cl 101 (2)(a). Instead, access is provided via Old Pittwater Road, over the property to the rear at Lot 1 over which I am satisfied that the subject site has an easement for access pursuant to s 88B of the Conveyancing Act 1919.
24. Furthermore, on the basis of the acoustic report prepared by Acoustic Logic dated 11 November 2020, I am satisfied that noise intrusion assessment has been undertaken and appropriate measures have been taken in accordance with cl 102 of the Infrastructure SEPP.
25. The application is accompanied by a BASIX Certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulations (Certificate No. 934320M_02 dated 5 November 2020).
26. The Court orders that:

(1) The applicant is granted to leave to rely upon amended plans and documents referred to in Condition 1 of Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away which were incurred by the Respondent as a result of the Applicant being granted leave to rely upon the amended development application as agreed or assessed.

(3) The written request pursuant to clause 4.6 of the Warringah Local Environmental Plan 2011 prepared by JV Urban dated 2 November 2020 which seeks to justify the contravention of the height of buildings development standard contained in clause 4.3 of WLEP is upheld.

(4) The appeal is upheld.

(5) Development Application No DA2019/0663 for the demolition of all existing structures and the construction of a shop top housing development comprising 15 dwellings, ground floor retail with associated car parking and landscaping on the land comprised in Lot D in DP 410277 known as and situate at 515 Pittwater Road Brookvale NSW 2100 is approved subject to the conditions contained at Annexure ‘A’.

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T Horton

Commissioner of the Court

Annexure A (254027, pdf)

Plans (12515196, pdf)

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