Botros v Bayside Council

[2022] NSWLEC 1276

Land and Environment Court

New South Wales

Medium Neutral Citation:

Botros v Bayside Council [2022] NSWLEC 1276

Hearing dates:

Conciliation conference on 23 March 2022; 26 April 2022; 11 May 2022

Date of orders:

01 June 2022

Decision date:

01 June 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicants are to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,500.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA-2021/310, as amended, for the redevelopment of 9 Rhodes Street, Hillsdale, including the demolition of existing structures and construction of new multi-dwelling development with four dwellings and basement car parking and associated works including permanent landscaping setback along the rear boundary, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Botany Bay Local Environmental Plan 2013, cll 4.3, 4.4, 6.1, 6.2, 6.3

Bayside Local Environmental Plan 2021, cl 1.8A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2, s 2.6

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

Mario Adeeb Ishak Botros (First Applicant)
Marina Morgan (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
P Saab (Solicitor) (Applicants)
J Cole (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2021/361979

Judgment

1. These proceedings are brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in response to the Bayside Council’s deemed refusal of the applicant’s development application no. 2021/310 (DA). The DA seeks consent for the demolition of the existing dwelling and construction of a multi-dwelling development with basement carparking at 9 Rhodes Street, Hillsdale being Lot 4 in Deposited Plan 232123 (site).

2. In an effort to resolve the appeal the Registrar directed that on 23 March 2022 the parties engage in a Court-facilitated conciliation conference convened under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. During that process the applicants amended various elements of the built form, and provided additional reports, which resolved the contentions raised in the Council’s Statement of Facts and Contentions. Ultimately, these changes allowed the parties to reach agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involved the Court upholding the appeal and granting development consent to an amended development application subject to conditions.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision could have made in the proper exercise of the Court functions. In this case, the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA on a conditional basis. Before this function can be exercised there are jurisdictional prerequisites that must be satisfied. The parties addressed these matters in a jurisdictional submission filed on 24 May 2022.

4. Having considered the parties’ submissions and the amended application, I am satisfied that I have jurisdiction to dispose of the matter as agreed. In that regard I note the following reasons.

Owners’ consent

5. The applicants are the owners of the subject site and the declaration regarding consent is contained in the original DA form dated 25 June 2021 (a copy of which forms part of the Class 1 Application).

Notification of DA and public interest considerations

6. The DA lodged with the Council was placed on notification for 14 days between 7 July 2021 and 21 July 2021. One objection was received during the notification period.

7. The submissions of objectors have been considered as required under s 4.15(1)(d) of the EPA Act along with the impact on the amenity of adjoining properties.

Botany Bay Local Environmental Plan 2013

8. As the DA was lodged prior to the commencement of the Bayside Local Environmental Plan 2021 (LEP 2021), in accordance with cl 1.8A of LEP 2021, it must be assessed having regard to the provisions of the Botany Bay Local Environmental Plan 2013 (LEP 2013).

9. The site is located within the R3 Medium Density Residential zone under LEP 2013 and the development is permissible with consent.

10. Having received and considered the amendments, the Council is satisfied that, subject to the imposition of conditions of consent, the proposal generally complies with the aims of LEP 2013 and is consistent with the objectives of the R3 zone.

11. The height and floor space ratio of the proposal as amended complies with cll 4.3 and 4.4 of LEP 2013 respectively.

12. In respect of cl 6.1, the Pacific Environmental Stage One Targeted PSI Contamination Investigation confirmed on p 25 that soil horizon test profiles indicate that acid sulfate soils are not present on the site.

13. Clause 6.2 has been considered and the earthwork impacts were found to be acceptable.

14. Clause 6.3 has been considered and the stormwater impacts were found to be acceptable.

Department of Planning and Environment

Botany Bay Development Control Plan 2013 (DCP)

15. The DCP applies to the DA, including relevantly Part 4 have been considered generally.

16. The proposal, subject to conditions, complies with the objectives and controls in the DCP. The proposed amendments have also changed the building layout to the rear of the site closest to the Botany Industrial Park (BIP). The Department of Planning’s Hazardous Industry Planning Advisory Paper No. 10 ‘Land Use Safety Planning’ (HIPAP 10) as to the risk criterion for toxic injury risk plots a ‘building line’ or setback provision having regard to the BIP use. The Department has been notified of the appeal and has not made an appearance/submission to the Court. The rear building setback is still within the ‘building line’ though it has been amended to achieve greater compliance. In addition, a dense landscaping strip is to be established along the rear of the boundary which is to be preserved and maintained for the life of the development by condition of consent and a public positive covenant and restriction as to user which will also effectively provide notification to incoming purchases of the inability to develop that area for more intensive ‘habitable purposes’. The ‘building line’ is not a jurisdictional precondition to vary and has been considered in this development consent for the proposal. The Department believes it should be complied with.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP)

17. Clause 4.6 of the Resilience & Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application.

18. The applicants have provided a Targeted Stage One Detailed Site Investigation Soil Contamination Assessment prepared by Pacific Environmental Australia dated 15 May 2022 specifying the findings of a preliminary investigation of the site carried out in accordance with the contaminated land planning guidelines, and in accordance with cl 4.6(2).

19. The Council informs me that it is satisfied that:

1. there is no known contamination of the site,

2. no further investigation of the site is warranted, and

3. the site is suitable for the proposed use.

20. The parties are therefore satisfied that cl 4.6 of the Resilience & Hazards SEPP has been addressed and so am I.

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

21. Pursuant to the BASIX SEPP and the Environmental Planning and Assessment Regulation 2000, the proposal is a BASIX-affected development, containing a BASIX-affected building. An updated BASIX certificate has been provided.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP)

22. Chapter 2 of the Biodiversity & Conservation SEPP applies to the DA.

23. Section 2.6 of the Biodiversity & Conservation SEPP states that a person must not clear non-exempt vegetation in any applicable area without a permit granted by the Council.

24. An arborist report and a landscape plan have been provided as part of the DA and the landscape plan has been amended as part of the proposal.

25. The impact of existing vegetation has been assessed having regard to Ch 2 of the Biodiversity & Conservation SEPP and the proposal amended to achieve its acceptability.

26. 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.

27. Accordingly, the Court notes:

1. That Bayside Council as the relevant consent authority, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, has consented to the applicants amending the development application DA-2021/310 made on 24 May 2022 to rely on the documents and plans specified below:

Plan No.	Revision No.	Plan Title.	Drawn By.	Dated.
A0003	G	Site Plan	Map Architects	31/03/22
A0004	G	Demolition Plan	Map Architects	31/03/22
A2000	G	Lower Ground Floor	Map Architects	31/03/22
A2001	G	Ground Floor	Map Architects	31/03/22
A2002	G	First Floor	Map Architects	31/03/22
A2003	G	Attic Plan	Map Architects	31/03/22
A2004	G	Roof	Map Architects	31/03/22
A2010	G	Lower Ground/Ground	Map Architects	31/03/22
A2011	G	First Floor/Attic	Map Architects	31/03/22
A2012	G	Roof	Map Architects	31/03/22
A2100	G	North Elevation	Map Architects	31/03/22
A2101	G	West Elevation	Map Architects	31/03/22
A2102	G	South Elevation	Map Architects	31/03/22
A2103	G	East Elevation	Map Architects	31/03/22
A3200	G	Section AA	Map Architects	31/03/22
A3201	G	Section BB/CC	Map Architects	31/03/22
A3202	G	Driveway Ramp Profile	Map Architects	31/03/22
A7003	G	Subdivision Plan 1	Map Architects	31/03/22
A7004	G	Subdivision Plan 2	Map Architects	31/03/22
C1	D	Planting Plan	Contour Landscape Architecture	30/03/22
C2	D	Planting Schedule	Contour Landscape Architecture	30/03/22
C3	D	Landscape Details	Contour Landscape Architecture	30/03/22
C4	D	Landscape Specification	Contour Landscape Architecture	30/03/22

Document Title.	Version No.	Prepared By.	Dated.
BASIX Certificate	1201548M_2	AENEC	9 May 2022

(the amended application).

2. That Bayside Council has uploaded the amended application on the NSW planning portal on 25 May 2022.

3. That the applicants have subsequently filed the amended application with the Court on 25 May 2022.

28. The Court orders:

1. The applicants are to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,500.

2. The appeal is upheld.

3. Development consent is granted to development application DA-2021/310, as amended, for the redevelopment of 9 Rhodes Street, Hillsdale, including the demolition of existing structures and construction of new multi-dwelling development with four dwellings and basement car parking and associated works including permanent landscaping setback along the rear boundary, subject to the conditions contained in Annexure A.

……………………..

S Dixon

Senior Commissioner of the Court

Annexure A (400643, pdf)

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Decision last updated: 01 June 2022