Aurora Design Pty Limited v Bayside Council

[2021] NSWLEC 1391

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aurora Design Pty Limited v Bayside Council [2021] NSWLEC 1391

Hearing dates:

Conciliation conference on 31 May 2021 and 21 June 2021

Date of orders:

8 July 2021

Decision date:

08 July 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [10]

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – residential apartment development – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50(1A), 50(1AB)

Land and Environment Court Act 1979, s 34

Rockdale Local Environmental Plan 2011 cll 4.3, 4.6, 6.2, 6.7, 6.11, 6.12

State Environmental Planning Policy (Infrastructure) 2007, cll 85, 87

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Texts Cited:

Apartment Design Guide, NSW Department of Planning and Environment, July 2015

Category:

Principal judgment

Parties:

Aurora Design Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
J Cole (Solicitor) (Respondent)

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

File Number(s):

2020/230648

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Bayside Council (the Respondent) of Development Application No. DA-2018/88 for the demolition of existing structures and construction of a part 4 and part 5 storey mixed use development including 3 retail shops, 12 residential unit, basement parking and loading at 16-20 Shaw Street, Bexley North (the site).

2. The appeal was originally listed for hearing before me on 31 May-1 June 2021. However, on the eve of the hearing, the parties advised the Court that the terms of an in principle agreement had been reached between the parties and so the parties sought by consent for the matter to be re-allocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 31 May 2021.

3. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 31 May 2021 that involved the Court upholding the appeal and granting conditional development consent to the development application.

4. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

5. 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.

6. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

• Rockdale Local Environmental Plan 2011

• State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

• State Environmental Planning Policy (Infrastructure) 2007

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

7. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow.

Rockdale Local Environmental Plan 2011 (RLEP)

1. The site is located in the B4 Mixed Use zone in accordance with the RLEP in which development for the purposes of commercial premises and shop top housing are permissible with consent. The objectives of the B4 zone are:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

2. The proposed development complies with all relevant development standards in the RLEP, with the exception of the maximum building height limit of 16m which applies to the site, according to the Height of Buildings Map at cl 4.3(2) of the RLEP.

3. A written request, prepared by Hamptons Property Services in accordance with cl 4.6 of the RLEP, seeks to justify the contravention of the height of buildings standard that is measured at a maximum of 755mm above the 16m height plane when applied to the site. For the reasons set out below, I am satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), that the written request adequately demonstrates that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and that the written request adequately establishes sufficient environmental planning grounds to justify contravening the height standard in this circumstance (cl 4.6(3)(b)).

• I accept that the proposed development is consistent with the objectives of the height standard, notwithstanding the non-compliance because firstly, the majority of the built form complies with the height standard, and that portion which exceeds the standard is well setback from the boundary to Shaw Lane; secondly, the Design Review Panel comments in respect of context and neighbourhood character and density and scale support the assertion made as to the quality of urban form proposed; thirdly, the exceedance is located on the northern side of the site, reducing impact on the public domain including Shaw Street Reserve; fourthly, the minor exceedance provides an appropriate transition given additional height of up to 22m is permissible in the immediate vicinity of the site where a site area of 1200m² is achieved.

• Next, I am satisfied that the written request establishes sufficient environmental planning grounds to justify the exceedance, primarily because I accept that the exceedance arises from the slope on the site, and does not impose adverse environmental impacts on adjoining properties or the surrounding public domain. In support of these grounds, I note that the southern elevation, which is at the high point of the site, is substantially below the maximum height permitted for the site.

• I am also satisfied that the written request is consistent with the objectives for development in the B4 Mixed Use zone because of the mix of compatible land uses on a site that is in an accessible location to the Bexley North railway station, and which integrates bicycle facilities in the entry foyer to encourage cycling. As I am satisfied that the proposed development is consistent with the objectives of the height standard, and of the zone, I also consider the proposal to be in the public interest. In arriving at this state of satisfaction, I note that the exceedance is minor, and is likely to be viewed in close proximity to buildings that are taller than the exceedance the subject of this development application where nearby sites are consolidated in the future so as to seek the benefit of the 22m height permitted by cl 4.3(2A)(c) of the RLEP.

• In respect of the Planning Secretary’s concurrence required at cl  4.6(4)(b) of the RLEP, I record here my conclusion that the contravention of the height standard does not raise any matter of significance for State or regional environmental planning. Neither do I consider there to be a public benefit in maintaining the development standard in this instance, and I consider there to be a public benefit served by upholding the written request for the reasons set out above.

4. On the basis of the geotechnical investigation completed by JK Geotechnics dated 12 September 2017, the Preliminary (Desktop) Acid Sulfate Soil Assessment prepared by Environmental Investigation Services dated 13 September 2017 and the Stormwater Management Plans prepared by RGH Consulting Group dated April 2021, I consider those matters at cl 6.2(3)(a)-(e) of the RLEP to be satisfactorily addressed.

5. After carefully considering the architectural drawings, and Stormwater Management Plans prepared by RGH Consulting Group dated April 2021, I am satisfied that proposal provides for some permeable surfaces in the deep soil planting at the north western corner of the site, and also provides the onsite retention of water and the appropriate management of stormwater on adjoining properties in accordance with cl 6.7 of the RLEP.

6. I am also satisfied that the proposed development will result in an active street frontage pursuant to cl 6.11 of the RLEP, other than to those areas excluded from the requirement by subcl (4).

7. On the basis of conditions of consent and general terms of approval from authorities in respect of public utilities (condition 51), water (conditions 60 and 61), electricity (condition 137), sewage (condition 27 and 138), stormwater drainage (conditions 26 and 61), and suitable vehicular access (conditions 5, 28 and 31), I am satisfied that adequate arrangements have been made to make essential services available for the site when required in accordance with cl 6.12 of the RLEP.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

1. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr Maurice Mandalinic (Reg No.9098), dated 26 April 2021 is in a complying form.

State Environmental Planning Policy (Infrastructure) 2007

1. Clause 85 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) requires notice of the development application to be provided in writing to the rail authority, and for any response to be considered. On the basis of the written notice dated 26 April 2018, the response from Sydney Trains dated 16 May 2018, and the terms of Condition 136 of the agreed conditions of consent, I consider the provisions of cl 85(2)(b) to be addressed.

2. On the basis of the acoustic report of Renzo Tonin & Associates dated 18 December 2017 which sets out the certain noise criteria and recommendations to ensure those criteria are met, I am satisfied that Condition 40(h), Condition 110 and Condition 125 contain appropriate measures to ensure that the relevant noise levels are not exceeded in accordance with cl 87 of SEPP Infrastructure.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 866591M_03), prepared by Integral Group Consulting Engineers Pty Ltd dated 22 April 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

State Environmental Planning Policy No 55 – Remediation of Land

1. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the conclusions contained in the Preliminary Site Investigation undertaken by EI Australia dated 21 June 2021, and the agreed conditions of consent, I am satisfied that the site can be made suitable for the purpose for which the development is proposed to be carried out.

Conclusion

8. 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.

9. 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.

Orders

10. The Court orders that:

1. Leave is granted for the Applicant to rely on the following amended plans, drawings and documents:

Plan/Report/Document	Prepared by	Dated
Architectural Plans
A000 – General Notes + Cover Page – Revision E	Aurora Design	09/04/2021
A050 – Site + Context Analysis – Revision E	Aurora Design	09/04/2021
A100 - Site Plan - Revision E	Aurora Design	09/04/2021
A199 - Basement 2 Floor Plan - Revision G	Aurora Design	09/04/2021
A200 - Basement 1 Floor Plan - Revision I	Aurora Design	08/04/2021
A201 - Ground Floor Plan - Revision H	Aurora Design	09/04/2021
A202 - Level 1 Floor Plan - Revision F	Aurora Design	09/04/2021
A203 - Level 2 Floor Plan - Revision E	Aurora Design	09/04/2021
A204 - Level 3 Floor Plan - Revision G	Aurora Design	09/04/2021
A205 - Roof Plan - Revision E	Aurora Design	09/04/2021
A250 - Gross Floor Areas - Revision I	Aurora Design	09/04/2021
A500 - Section A-A - Revision G	Aurora Design	09/04/2021
A501 - Section B-B / Courtyard North Elevation - Revision F	Aurora Design	09/04/2021
A502 - Section C-C / Courtyard South Elevation - Revision E	Aurora Design	09/04/2021
A600 - South Elevation - Revision E	Aurora Design	09/04/2021
A601 - West Elevation - Revision F	Aurora Design	09/04/2021
A602 - North Elevation – (At Building Line) - Revision E	Aurora Design	09/04/2021
A603 - East Elevation - Revision E	Aurora Design	09/04/2021
A610 – Shaw Street (South) Streetscape Elevation – Revision D	Aurora Design	09/04/2021
A800 - Glazing Schedule 1 – Revision C	Aurora Design	09/04/2021
A801 - Glazing Schedule 2 – Revision C	Aurora Design	09/04/2021
A802 - Glazing Schedule 3 – Revision B	Aurora Design	09/04/2021
A890 – Thermal Sheet 01 – Revision A	Aurora Design	22/04/2021
A895 – BASIX Sheet 01 – Revision A	Aurora Design	22/04/2021
Stormwater Plans
DA01 - Cover Sheet and Locality Plan – Revision C	RGH Consulting Group	14/04/2021
DA02 - Sediment and Erosion Control Plan – Revision C	RGH Consulting Group	14/04/2021
DA03 - Sediment and Erosion Control Details – Revision C	RGH Consulting Group	14/04/2021
DA04 - Concept Stormwater Management Plan - Basement 2 - Revision A	RGH Consulting Group	14/04/2021
DA05 - Concept Stormwater Management Plan - Basement 1 – Revision E	RGH Consulting Group	16/04/2021
DA06 - Concept Stormwater Management Plan - Ground Floor – Revision E	RGH Consulting Group	16/04/2021
DA07 - Concept Stormwater Management Details – Revision D	RGH Consulting Group	16/04/2021
Landscape Plans
Landscape Plan for Development Application Sheet 1 of 7 - Basement 2 – Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Landscape Plan for Development Application Sheet 2 of 7 - Basement 1 - Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Landscape Plan for Development Application Sheet 3 of 7 – Ground - Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Landscape Plan for Development Application Sheet 4 of 7 – Level 1 - Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Landscape Plan for Development Application Sheet 5 of 7 – Level 1 Internal Courtyard Detail - Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Landscape Plan for Development Application Sheet 6 of 7 – Level 2 - Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Landscape Plan for Development Application Sheet 7 of 7 – Level 3 - Issue 4	Glenice Buck Designs Pty Limited	09/04/2021
Reports
Amended traffic and parking report prepared by GTK Consulting dated March 2021
Clause 4.6 variation request in relation to height prepared by Hamptons Property Services
Revised SEPP 65 Design Verification Statement prepared by Aurora Design and dated 9 April 2021
Swept paths prepared by GTK Consulting dated 8 April 2021
Updated survey plan prepared by Intrax Consulting Group dated 25 September 2020
Arboricultural Impact Assessment prepared by Glenice Buck Designs dated 13 October 2020

2. The Applicant's written request under clause 4.6 of the Rockdale Local Environmental Plan 2011 prepared by Hamptons Property Services seeking a variation of the development control for height of buildings set out in clause 4.3 of the LEP is upheld.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, on the ordinary basis and as agreed or assessed.

4. The appeal is upheld.

5. Development Application DA-2018/88 for the demolition of existing structures and construction of a part 4 and part 5 storey mixed use development including 2 retail shops, 11 residential units, basement parking and loading at 16­20 Shaw Street, Bexley North is approved subject to the conditions set out in Annexure ‘A’ to this agreement.

……………………

T Horton

Commissioner of the Court

Annexure A (531956, pdf)

Architectural Plans (4851866, pdf)

Landscape Plans (1745738, pdf)

Stormwater Plans (987276, pdf)

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Decision last updated: 09 July 2021