Samarpan Investments Pty Ltd v Penrith City Council [2019] NSWLEC 1093

Land and Environment Court New South Wales

Medium Neutral Citation: Samarpan Investments Pty Ltd v Penrith City Council [2019] NSWLEC 1093 Hearing dates: Conciliation conference on 1 March 2019 Date of orders: 07 March 2019 Decision date: 07 March 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See [12] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Samarpan Investments Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: T Hale SC (Applicant) S Nash (Respondent)

Solicitors: P Jayne, Madison Marcus Law Firm (Applicant) C Morton, Sparke Helmore Lawyers (Respondent) File Number(s): 2017/384992 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent's refusal of DA16/1381 (DA). Under the DA, consent was sought for a five storey residential flat building containing 50 residential units and parking for 67 vehicles over two basement levels, and various associated matters including demolition works and site consolidation, at 1-7 Markham Avenue, Penrith. 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 March 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties evidenced their 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. 4. 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 parties identified the jurisdictional prerequisites of relevance in these proceedings and below I address each in turn. 5. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30(2): I note the advice that the Applicant's architect has prepared a Design Verification statement, in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000, and that verification requirements have been followed through in relevant consent conditions. I am satisfied that the development demonstrates adequate regard to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria. 6. State Environmental Planning Policy No 55—Remediation of Land, cl 7(1): I am advised that upon receipt of the development application the subject of this appeal, Council undertook an assessment of the site having regard to its aerial mapping facility and site usage records. That assessment concluded that the site was unlikely to have been used for a potentially contaminating activity. I am satisfied that there has been appropriate consideration of whether the land is contaminated. 7. Penrith Local Environmental Plan 2010, cl 2.3: as required I have had regard to the zone objectives in coming to this determination, and this consideration does not cause me concerns in regard to the decision of the parties. 8. Penrith Local Environmental Plan 2010 (LEP), cl 4.3 height of buildings: the proposal contravenes the building height standard contained at cl 4.3 of the LEP. The relevant height standard is 15m. The proposed maximum height is 16.435m, and in a recessed location, according to details submitted on behalf of the applicant which are not disputed by the parties. Clause 4.6(2) of the LEP provides for the contravention of this standard if certain pre-requisites are met. Below I consider these pre-requisites to come to a point of satisfaction in regard to the use of cl 4.6(2): 1. A threshold pre-requisite is the submission of a written request seeking to justify the contravention. In this instance a written request has been provided by ABC Planning Pty Ltd dated March 2019. I have considered this written request. 2. In regard to the written request, for the powers under cl 4.6(2) to trigger I need to be satisfied that the written request has adequately addressed two matters: (1) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, (2) that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). 3. In Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51], the Chief Judge summarised the common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary. One way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. In this instance the written request works through the objectives of the height of building standard and provides particulars to justify achievement of each objective notwithstanding the breach. I am in turn satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard, notwithstanding non-compliance. 4. I am also satisfied that the written request adequately establishes sufficient environmental planning grounds to justify the contravention of the height standard. It evidences that the building has been setback a greater distance than required under the controls and that there are no greater amenity impacts (overshadowing, view loss, privacy) than would apply for a building complying with height controls. Mindful of this, I am satisfied with the argument that the replacement of four "outdated dwellings that have poor amenity" with the proposed residential flat building "that achieves high internal amenity" constitutes sufficient environmental planning grounds. 5. Setting aside the written request I am also required to be directly satisfied that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. I have worked through each of the relevant objectives. I have come to an opinion of satisfaction in regard to both the zone and height standard objectives. In coming to this opinion I note the scaling back of the proposal compared to that originally lodged and the extent of input from urban design experts in coming to a final design solution for the site. 1. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision 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). 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders below have this effect. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application. 4. The Court orders that: 1. Leave is granted to the Applicant to rely upon the amended plans and document listed in condition 1 of Annexure "A" hereto. 2. Pursuant to section 8.15(3) of the EP&A Act, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed. 3. The Applicant's written request pursuant to clause 4.6 of the Penrith Local Environmental Plan 2010 (LEP) seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of the LEP dated 1 March 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the LEP. Consequently, the Applicant's written request is well founded and is upheld. 4. The appeal is upheld. 5. Development Application No DA16/1381 seeking consent for the demolition of existing structures and construction of a (5) storey residential flat building containing 47 units over basement parking on the land at 1-7 Markham Avenue Penrith NSW is approved subject to conditions annexed hereto and marked "A". ………………………. Peter Walsh Commissioner of the Court Annexure A (475 KB, pdf) Architectural Plans_Part1 (8.43 MB, pdf) Architectural Plans_Part2 (17.0 MB, pdf) Landscape Plans (8.51 MB, pdf)

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Amendments 11 March 2019 - Correction to Representation on coversheet. 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: 11 March 2019