570 Princes Highway Pty Ltd v Bayside Council

[2025] NSWLEC 1100

Land and Environment Court

New South Wales

Medium Neutral Citation:

570 Princes Highway Pty Ltd v Bayside Council [2025] NSWLEC 1100

Hearing dates:

Conciliation conferences on 13 September 2024 and 6 November 2024.

Date of orders:

21 February 2025

Decision date:

21 February 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $20,000, and payable within 28 days.

(2) The appeal is upheld.

(3) Development Application No. DA-2022/145, as amended, for the demolition of existing structures and construction of a 12-storey mixed-use development comprising of a commercial tenancy at ground level with two towers of 12-storeys and 6-storeys located above containing 65 co-living rooms, associated communal areas including a communal terrace on level 1 between the towers, 8 stacked car parking spaces, motorcycle and bicycle parking, loading bay and associated earthworks, landscaping and stormwater drainage works at 570 Princess Highway, Rockdale is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use - co-living - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Land and Environment Court Act 1979, s 34

Bayside Local Environmental Plan 2022, cll 2.3, 4.3, 4.6, 6.1, 6.2, 6.3, 6.10, 6.11

Environmental Planning and Assessment Regulation 2021 ss 27, 38
State Environmental Planning Policy (Housing) 2021, Pt 3, ss 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Category:

Principal judgment

Parties:

570 Princes Highway Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/84350

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA-2022/145. The development application sought consent for the demolition of existing structures and construction of a part 12 storey, part 6 storey mixed use development comprising a commercial tenancy and co-living rooms with basement carparking and associated works (DA) at 570 Princess Highway, Rockdale (legally described at Lot 2 in DP 529876).

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 held on 13 September 2024 and 6 December 2024 with subsequent communications through online court. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Reg) to the Applicant amending DA-2022/145 in accordance with the documents contained at Annexure B (amended DA). These changes are described in the jurisdictional statement below:

a.   Reduction of total rooms from 72 to 64.

b.   Reduction of rear building height (level 7-11 removed).

c.   Relocation of Lift A and B, Fire Stairs 03 and 04, Car Space Pit Stacker, Car Space Semi Auto Inground Pit Stackers, Motorcycle parking, Café, Lobby, Plant Room, Waste Room, OSD and Water Tank.

d. Addition of Accessible Parking and Shared Area (Ground Floor Area).

e.   Addition of North and South façade setbacks (Level 1-11 and Roof Level Plan).

f.   Addition of Common Room 2 with a non-trafficable landscape zone (Level 5).

g. Removal of the Rear Planter box (Ground Floor Area), Roof Top COS at the rear of the building and rear building level (Level 7-11).

h.   Increase of privacy fence height to 1.5m for units 104 and 105.

4. 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement identifying all the relevant preconditions and setting out how the proposal has satisfied the jurisdictional requirements.

6. 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.

Jurisdictional Prerequisites

7. 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 explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

8. I am satisfied that owner’s consent accompanied the development application, provided within the Class 1 appeal. The Respondent notified the development application between 8 June 2022 to 22 June 2022 and an amended application was notified between 29 September 2022 and 13 October 2022. 23 submissions were received.

9. As the parties have reached agreement, the parties have considered the concerns raised in the submissions and not the Court. The parties have advised in paragraphs 57-60 of the jurisdictional statement that the submissions have been considered and the relevant matters addressed.

10. A BASIX Certificate accompanies the amended DA as required by a 27 of the EPA Reg.

Bayside Local Environmental Plan 2021

11. I accept the parties’ agreement that the identified preconditions in the Bayside Local Environmental Plan 2021 (BLEP) to grant consent are satisfied as detailed below.

1. The site is zoned E1 Local Centre. The proposed development for a boarding is permissible through the State Environmental Planning Policy 2021 (Housing SEPP) as shop top housing is permissible with consent in the E1 zone. Commercial premises are permissible in the E1 zone. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

2. Clause 4.3 height of buildings applies to the site, with a maximum height of 40m. The amended DA is a maximum height of 38.5m as shown on the architectural plans prepared by CD Architects Revision E (architectural plans) and stated at paragraph 45 of the jurisdictional statement.

3. Clause 6.1 acid sulfate soils applies to the site, mapped as Class 5 soils. The amended DA is accompanied by an Acid Sulphate Soils Management Plan prepared by EI Australia dated 25 March 2022. I accept the parties’ agreement that the recommendations satisfy the provisions as set out at paragraph 49 of the jurisdictional statement.

4. Clause 6.2 earthworks applies to the site. The DA was accompanied by a Geotechnical Investigation prepared by EI Australia dated 24 March 2022 that addresses the provisions. Conditions of consent have been included at Annexure A relating to geotechnical certificate and damage to adjoining properties.

5. Clause 6.3 stormwater and water sensitive urban design apply to the site. On the basis of the documentation accompanying the amended DA, including the architectural plans, stormwater plans prepared by C&S Engineering, flooding modelling prepared by C&S Engineering and paragraph 51 of the jurisdictional statement, I accept the parties’ agreement that the provisions have been satisfied.

6. Clause 6.10 design excellence applies to the proposed development. The SEE sets out how the proposed development satisfies the design excellence provisions.

7. Clause 6.11 essential services applies to the amended DA. The site is currently serviced by the requisite essential services and will continue to be under the amended DA, including proposed new driveway access.

State Environmental Planning Policy (Housing) 2021

12. As set out in the jurisdictional statement, the parties agree, and I accept that the identified preconditions to the grant of consent in Pt 3 of the Housing SEPP are met as stated in the jurisdictional statement at paragraph 28, amended Statement of Environmental Effects prepared by Planning Ingenuity dated 28 October 2024 (SEE) and other documentation in the class 1 appeal. The amended DA is consistent with the criteria of ss 68 and 69 with the exception of s 68(2)(e) and s 69(1)(b).

13. Section 68(2)(e) requires the proposed development to provide a minimum of 13 car spaces. The proposed development provides 9 car spaces and seeks to vary the non-discretionary development standard. The amended DA is supported by a Clause 4.6 Variation prepared by Planning Ingenuity dated 28 October 2024 (written request). The parties are satisfied of the merits of the written request. I accept that the written request satisfactorily addresses the mandatory provisions of cl 4.6 of the BLEP.

14. Section 69(1)(b) requires a minimum lot size of 800m². The site is 568.9m² and accordingly, seeks to vary the development standard. The amended DA is supported by a Clause 4.6 Variation prepared by Planning Ingenuity dated 28 October 2024 (written request). The parties are satisfied of the merits of the written request. I accept that the written request satisfactorily addresses the mandatory provisions of cl 4.6 of the BLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. The provisions of s 4.6 of State Environmental Planning Policy (RH) 2021 apply to the site. The amended DA is accompanied by a Remedial Action Plan dated 13 January 2025 (RAP) which details the remediation methodology and recommendations to make the site suitable for the proposed use. The recommendations of the RAP have been included in the conditions of consent at Annexure A. On this basis, the parties agree, and I accept that s 4.6 has been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

16. Section 2.119 applies as the site has frontage to a classified road with daily traffic volumes of over 19,000 vehicles. I accept the parties’ agreement that provisions have been met as access is from Chapel Lane, the Traffic and Parking Assessment Report prepared by Varga Traffic Planning dated 29 April 2022 confirms there are no concerns for the safety, efficiency or ongoing operation of the Princes Highway and the Acoustic Assessment prepared by Acoustic Noise and Vibration Solutions dated 29 April 2022 (Acoustic Report) demonstrates that future residents will be adequately protected from the impacts of the classified road. For completeness, whilst not triggered, the parties agree that the acoustic requirements of s 2.120 have also been considered.

Conclusion

17. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

18. 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.

Orders:

19. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $20,000, and payable within 28 days.

2. The appeal is upheld.

3. Development Application No. DA-2022/145, as amended, for the demolition of existing structures and construction of a 12-storey mixed-use development comprising of a commercial tenancy at ground level with two towers of 12-storeys and 6-storeys located above containing 65 co-living rooms, associated communal areas including a communal terrace on level 1 between the towers, 8 stacked car parking spaces, motorcycle and bicycle parking, loading bay and associated earthworks, landscaping and stormwater drainage works at 570 Princess Highway, Rockdale is determined by the grant of consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 21 February 2025