NEXT IN PROPERTY - Edition No.9

When is a Development Application Officially Lodged in NSW?

In New South Wales, a Development Application (DA) is officially lodged when either the application fee is paid, or the submission is made via the NSW Planning Portal (if no fee applies). Once lodged, the clock starts on the assessment period—typically between 40 and 90 days—depending on the type of development. If the consent authority requests additional information within the first 25 days, the clock pauses until the information is provided. If the authority fails to act within this timeframe, applicants can appeal for "deemed refusal" through the Land and Environment Court.

Additionally, the authority must either reject incomplete applications or issue an invoice within 14 days. If they fail to do so, developers can file a legal claim to compel action. Importantly, developers must remain cautious of amendments, as significant changes to the DA can reset the assessment period, requiring the process to start over.

Key Considerations:

• The application is lodged when the fee is paid or submitted via the portal.
• The clock can be paused if additional information is requested within 25 days.
• If no decision is made by the end of the assessment period, developers can pursue deemed refusal appeals.
• Major DA amendments reset the timeline for assessment.

Understanding these rules ensures developers can manage their application timelines efficiently and take appropriate actions if delays occur.

Self-Storage Meets Office Space: Alexandria’s Latest $17M Development Unveiled

Plans have been submitted for a seven-storey mixed-use development at 9-13 Bourke Road, Alexandria, comprising six levels of self-storage units, offices, and retail spaces. The project, valued at $17 million, is proposed by Singaporean-backed Storhub Group, which entered the Australian market with a $300 million investment. In addition to self-storage, the development will offer ancillary offices, rentable office spaces, and wine storage facilities. Alexandria continues to attract significant interest, cementing its role as a key growth area for developers.

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Lease Opportunities at Sunshine Coast Aerospace Park: A Game Changer for Aviation and Innovation

The newly launched Sunshine Coast Aerospace Park offers premium lease opportunities for businesses in the aerospace and aviation sectors. Located near the Sunshine Coast Airport, this development provides high-end industrial space for aviation, defense, and tech-focused businesses. The park features build-to-suit facilities, customizable office space, and easy access to national and international transport links, making it ideal for companies looking to expand their operations.

Key Benefits:

• Strategic Location: Close to Sunshine Coast Airport and major highways.
• Tailored Spaces: Build-to-suit options for aviation and aerospace industries.
• Infrastructure Support: Access to advanced infrastructure and logistics.

Why Is It Unique?

The Sunshine Coast Aerospace Park is the only aviation-focused development of its kind in the region. The proximity to the airport, along with tailored facilities, provides a perfect synergy for aerospace and aviation businesses. This makes it a rare and valuable opportunity for companies seeking expansion in a region with growing infrastructure and economic support.

What This Means for the Region:

The park is expected to attract domestic and international businesses, boosting the local economy, creating jobs, and positioning the Sunshine Coast as a leading player in the aviation and aerospace industries. It will also encourage innovation and collaboration in aerospace technologies, drawing attention to the region as a hub for future-focused industries.

Interested parties, particularly in aviation, defense, and logistics, will find the Sunshine Coast Aerospace Park an attractive proposition for growth and regional influence.

Detailed Summary of the Conciliation Conference in the Land and Environment Court: Ausbay Constructions Pty Ltd v Inner West Council

This case, Ausbay Constructions Pty Ltd v Inner West Council [2024] NSWLEC 1643, concerns a development application (DA) for alterations and additions to a residential flat building, converting it into in-fill affordable housing. The development, located at 328-336 Liverpool Road, Ashfield, involved adding two upper levels with 18 units. The Inner West Council initially refused the DA, leading Ausbay Constructions to appeal the decision to the NSW Land and Environment Court.

?The Court arranged a conciliation conference under the Land and Environment Court Act 1979, where both parties were required to negotiate a solution. Here’s how the process unfolded and the key takeaways for developers:

Key Issues and Points Raised:

1. Affordable Housing and Zoning Discrepancies: The development proposed an expansion into in-fill affordable housing, and the Council raised concerns about the suitability of the site, zoning, and the community's feedback on the increased density. The property is located in a Mixed Use (MU1) Zone under the Inner West Local Environmental Plan 2022, where "residential flat buildings" are not allowed. However, due to existing use rights, the development could proceed.
2. Height and Floor Space Exceedances: The original application exceeded height and floor space ratio (FSR) limits. Ausbay Constructions requested 30% bonuses to both height and FSR, allowed under the State Environmental Planning Policy (Housing) 2021 for developments that include affordable housing. This formed a critical part of the applicant's argument for the Court to approve the amendments despite the council's refusal

How the Parties Presented and Defended Their Cases:

• Ausbay Constructions (Applicant): The applicant emphasized the project's compliance with affordable housing guidelines and the significant need for affordable units in the area. They also highlighted that the project adhered to existing use rights and sought height and FSR bonuses within legal parameters. Additionally, Ausbay Constructions responded to design and aesthetic concerns by amending the development application.
• Inner West Council (Respondent): The Council's primary concerns revolved around height, density, and the potential impact on local infrastructure. They were particularly focused on how the development could affect traffic, stormwater systems, and public amenities. However, during the conciliation process, the Council agreed to modifications that allowed the project to move forward under certain conditions.

Resolution and Court Decision:

1. Amended Development Consent: The conciliation process was successful, and the Court upheld the appeal, granting development consent subject to amendments. The applicant agreed to modify aspects of the design to reduce adverse impacts, including stormwater management and building design adjustments.
2. Costs and Amendments: The applicant was ordered to pay $12,000 in costs to the Council for amending the application. The Council also permitted the applicant to modify the DA to meet their concerns.

Key Takeaways for Developers:

1. Use of Affordable Housing SEPP: Affordable housing incentives, such as height and floor space bonuses, can be valuable tools for developers. Leveraging policies like the State Environmental Planning Policy (Housing) 2021 allows developers to add density and make projects more financially viable, provided they meet affordable housing criteria.
2. Engage Early in the Conciliation Process: The conciliation conference provided a platform for negotiation, avoiding a protracted court battle. Developers should be prepared to make reasonable amendments and engage constructively with councils to expedite the process.
3. Understand Zoning and Existing Use Rights: Even in cases where a proposed development falls outside the current zoning rules, existing use rights can provide avenues for approval. Developers should thoroughly explore these options in situations where zoning restrictions may seem like an obstacle.
4. Addressing Community and Council Concerns: Engaging with community concerns, particularly around traffic, infrastructure, and environmental impacts, is crucial. Submissions from residents and the council need to be addressed directly through design modifications to increase the chances of a successful outcome.

Conclusion:

The conciliation conference process in the NSW Land and Environment Court provides a practical avenue for resolving disputes between developers and councils. By proactively addressing concerns and leveraging policies like the Housing SEPP, developers can secure approvals even in challenging cases.

Source: Ausbay Constructions Pty Ltd v Inner West Council - NSW Caselaw

Detailed Summary of the Conciliation Conference in the Land and Environment Court: Edgecliff Residences Pty Ltd v Woollahra Municipal Council

The case of Edgecliff Residences Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1639 involves a dispute over a Development Application (DA) submitted by Edgecliff Residences for the demolition of an existing residential building and the construction of a new 11-unit apartment building with 24 car parking spaces at 365 Edgecliff Road, Woollahra. The DA was initially deemed refused by Woollahra Council, prompting the applicant to file an appeal with the NSW Land and Environment Court.

A conciliation conference was arranged under the Land and Environment Court Act 1979, during which both parties negotiated an agreement that resolved many of the Council's concerns and led to an approval of the amended DA.

Key Issues Raised

1. Height and Floor Space Ratio (FSR) Exceedance: The original DA exceeded the height limit and FSR set by the Woollahra Local Environmental Plan (WLEP). The applicant sought to vary these standards, requesting a height limit increase through a clause 4.6 written request.
2. Impact on Streetscape and Local Character: Concerns were raised regarding the building’s impact on the streetscape, views, and desired future character of the area, especially since the proposed development was taller than neighbouring buildings.
3. Excavation and Tree Removal: The Council had reservations about the extent of excavation, which posed risks to geotechnical stability and street trees. There were also concerns about potential damage to vegetation and loss of tree canopy in the area.
4. Neighbouring Property Privacy and Sunlight: Issues related to privacy, cross-viewing, and overshadowing were also brought up, with concerns about the development’s impact on adjacent properties' sunlight and views.

How the Parties Presented and Defended Their Cases

• Edgecliff Residences (Applicant): The applicant argued that the proposed height exceedance was necessary due to the topography of the site and that it would not negatively impact the area. They emphasised that the development was compatible with the desired future character and that the additional height would not result in significant visual or overshadowing impacts. Furthermore, they pointed out that the project would provide much-needed medium-density housing in a prime location. The applicant also agreed to amend their plans to address concerns about privacy, landscaping, and tree removal, reducing the building’s bulk and improving setbacks from neighbouring properties.
• Woollahra Municipal Council (Respondent): The Council raised concerns about the development's non-compliance with the height and FSR standards set by the WLEP and argued that the project was out of character for the area. They also highlighted the potential geotechnical risks posed by excavation, the loss of trees, and the negative impact on the streetscape and amenity of neighbouring properties. However, during the conciliation, the Council agreed to approve the development subject to conditions, including design modifications and the retention of some street trees.

Key Takeaways for Developers

1. Leveraging Clause 4.6 for Height and FSR Variations: Developers can seek height and FSR variations through a Clause 4.6 request if they can demonstrate that compliance with the standard is unreasonable and the proposed development aligns with the overall objectives of the area’s planning controls. In this case, the Court accepted the height variation due to the topography and minimal impact on the surrounding area.
2. Negotiating During Conciliation Conferences: The conciliation conference provided an effective platform for negotiation. Developers should be prepared to amend plans during this process to address council concerns, which can help expedite approvals and avoid lengthy litigation.
3. Addressing Streetscape and Privacy Concerns: Ensuring that a development is compatible with the local streetscape and maintaining privacy for neighbouring properties are crucial factors. In this case, design modifications to reduce the building's bulk and enhance setbacks were key to gaining approval.
4. Tree Protection and Excavation Risks: Protecting existing trees and managing excavation risks are common concerns in urban developments. Developers should consider adjusting driveway placement or other site features to minimize damage to trees and mitigate potential excavation-related risks.

Conclusion

This case highlights the importance of a proactive approach to conciliation in the NSW Land and Environment Court. By amending designs, addressing key concerns, and leveraging planning mechanisms like Clause 4.6, developers can successfully navigate council objections and secure development approvals.

Source: Edgecliff Residences Pty Ltd v Woollahra Municipal Council - NSW Caselaw

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