Casumo Constructions Pty Ltd v Botany Bay City Council

[2006] NSWLEC 445

Land and Environment Court

of New South Wales

CITATION:

Casumo Constructions Pty Ltd v Botany Bay City Council [2006] NSWLEC 445

PARTIES:

APPLICANT
Casumo Constructions Pty Ltd

RESPONDENT
Botany Bay City Council

FILE NUMBER(S):

11248 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Deemed Refusal :- multi-unit residential/commercial development, planning agreements, compliance with adopted development control plan and master plans, public notification, car parking, privacy, solar access, storm water drainage, landscape and streetscape, subterranean water flows, acid sulphate soils, site contamination, traffic generation and access, aircraft and traffic noise, underground railway vibration and electrical discharges, supply of electricity to the site, sustainable design provisions, road widening, transport interchange at adjacent rail station.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65
Mascot Station Development Control Plan 2004.
Botany Local Environmental Plan 1995

DATES OF HEARING:

3/04/2006, 13/04/2006 and 26/06/2006

 
DATE OF JUDGMENT: 

07/20/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Rigg, solicitor
of Deacons

RESPONDENT
Mr T. O'Connor, solicitor
of Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

20 July 2006

11248 of 2004 Casumo Constructions Pty Ltd v Botany Bay City Council

JUDGMENT

1 This is a class 1 appeal No. 11248 of 2004 between Casumo Construction Pty Ltd and Botany Bay City Council in regard to the deemed refusal of DA2004/0366 for a very large multi-unit residential/commercial development at a site known as:

a) Nos. 37-39 Church Avenue
b) No. 8 Bourke Street
c) Nos. 36-38 John Street
d) Nos. 40-42 John Street, Mascot.

2 Existing buildings are to be demolished.

3 The site is about 7,400 sq m in area, and is opposite the new Mascot underground railway station in Bourke St that connects the city with the airport and the Illawarra line and the Liverpool line.

4 The site is flat. The main frontage to Bourke Street is a full city block in length. On the west of the site, it abuts an even larger site owned by ING. Considerable negotiation has occurred with that owner and the council, and the applicant.

5 Two of the matters of significance in the negotiations revolve around the applicable Mascot Station Development Control Plan 2004. In it, an area on the corner of Bourke Street and John Street on the subject site had been identified, but not as yet acquired or zoned for future public open space. By negotiation this was moved to be opposite the station to create a public open space dedicated to council complete with a bus bay and pick-up/drop-off area. This created an opportunity for a “town square” if you like at the transport node with provision for transport interchange with cars/buses/trains.

6 Leading west from the public open space is the piazza. This forms a right-of-way pedestrian mall leading from the station to the ING site. This would provide and important access link to the station from a future major commercial/residential site.

7 The commercial/retail spaces of the development total about 1420 sq m with frontage to the public open space, the piazza and Bourke Street.

8 ING had also agreed to maintain any buildings on its site with a 5 m setback to the subject property to maintain appropriate separation between buildings on both sites. ING apparently intends the setback area to be a service road.

9 Agreements on these two and other matters have been formalised between Council, the applicant and ING, and are to be enacted if a consent issues in this appeal.

10 The parties have reached consent orders as in Exhibit HH with amended conditions substituted into Exhibit 6. The Mayor of Botany Bay, Councillor Ron Hoenig, has authorised consent orders under delegated authority.

11 During the public notification of the original design, submissions were received only from public authorities and ING. The ING concerns were part of the negotiations since, and have been resolved to the parties satisfaction.

12 When the parties first came to this hearing, the intention to enter into Consent Orders and the planning agreements under s 93G of the Environmental Planning and Assessment Act 1979 had not been notified. An adjournment was granted to allow notification and no objections were received. Submissions from the following public authorities were put into evidence:

a) Roads and Traffic Authority. (RTA)
b) Department of Natural Resources (DNR)
c) Sydney Water
d) Energy Australia
e) State Rail
f) Sydney airport

13 Their conditions and requirements have been included in the consent orders and draft conditions. On resumption of the hearing the parties tendered amended draft conditions and further reports and documentation to cover all matters requiring consideration under s 79C of the Environmental Planning & Assessment Act 1979 and the matters under the council’s statutes and controls.

14 The proposal has 3 towers of 10 storeys sitting on a podium of commercial/service facilities of 1-storey. The high ceilings of the commercial/service areas allow behind them 2-storeys of car-parking above ground and 2-storeys of parking below ground. At street level of the podium the commercial/retail spaces front Bourke Street, the piazza and the public open space with the car-parking behind.

15 At the Church Street end on the north of the proposal is a wide footpath outside a commercial space on the corner, and then a vehicle entry to the car-park off Church Street, and an electrical substation room adjoining the ING site. At John Street on the south end of the site is a commercial space on the corner, then a truck bay entry, loading/unloading and a garbage store.

16 The parking spaces in the podium total 428. Included in this are 366 residents car spaces (including 21 disable person vehicle accessible spaces), 30 visitors car spaces, 24 commercial spaces, 2 truck bays, 3 wash bays, 3 courier 5-minute parking bays plus 29 bicycle lockers. Also in the podium levels there are various mechanical equipment rooms, stormwater detention systems, residents’ storage cubicles and fire escape stairs and passages etc.

17 On top of the podium is a large central private courtyard for the residents. It runs north-south. It separates 2 of the towers, one along the Bourke Street frontage and one along the west boundary adjacent the ING site. On the podium level at the north end of the “Bourke Street Tower” is a swimming pool and gym. At the 7th level above the podium at the north end of the “West Tower” is a large terrace with kitchen and toilets for the use of all the residents. The favourable orientation of these communal facilities means they all have excellent solar access.

18 At the podium level, each of the units in these 2 towers have a private entry courtyard off the central large one, and another private terrace facing Bourke Street or the ING site. The units are 2-storeys, each with its own internal stair to the bedrooms on the upper level. Above these lower apartments all the units in these 2 towers are designed to be 2-storey with entry and living rooms on one level and bedrooms on the next. Therefore access corridors to the front doors of units are only required every second floor.

19 This 2-storey design and an access corridor only every second floor has the advantage of each unit having rooms and windows on opposite sides of the building. This ensures through- or cross-ventilation to all units in the Bourke St and West Towers. The distances between the towers provide acceptable privacy separation, and enables acceptable sunlight penetration into the units.

20 The third tower at the south end of the site is all single level apartments with terraces overlooking Bourke Street, John Street, the ING site or the central courtyard. This “South Tower” stands a little apart from the Bourke Street Tower and the West Tower due to the pedestrian piazza at ground level, which runs between giving access to the ING site. The South Tower has some units facing south and therefore have poor mid-winter solar access, however the development achieves 70% of all units having the required solar access or better under SEPP65.

21 The three residential towers have entry lobbies at the podium level off the central courtyard. The South Tower has a bridge to its lobby from the central courtyard across the pedestrian piazza below. From the piazza below there are lifts and a grand staircase to the main entrance for the residential towers. The entrance gives security access to the central courtyard only. Other lifts and stairs give access from the car-park levels up into each tower and there are separate fire stairs as required by the applicable statutes. The South Tower has a secondary entry lobby at the piazza level too.

22 There are a total of 209 residential flats comprising 26 studios, 26 one-bedroom and 157 two-bedroom units.

23 Below is a site and locality plan, and a perspective of the proposal as seen from the Railway Station.

24 The documents in evidence are:

• The final plans in Exhibit GG
• Perspectives of the proposal from various locations
• The landscape plans in Exhibit C
• Preliminary parking and traffic report by Mr Hallam who the parties had agreed the Court should appoint. He was not called to give evidence, but the matters he had raised had been the subject of amendments to the proposal.
• Shadows thrown external to the site
• Stormwater drainage and detention systems.
• SMEC Australia P/L Phase 1 dated Jan 2004 and Phase 2 Site Contamination Report dated May 2004
• Douglas Partners Acid Sulphate soils assessment and preliminary management plan Dec 2005.
• Douglas Partners Contamination Remedial Action Plan Feb 2006
• C.M Jewell & Assoc. P/L Remedial Action Plan reviews dated 15 Dec 2005 and 22 Feb 2006.
• Original Statement of Environmental Effects by Longitude Planning P/L April 2004.
• Summary compliance table for Botany LEP 1995 and Mascot Station Precinct DCP 2004.
• Transport & Traffic Planning Assoc report, April 2006.
• Test Bores and Geotechnical report by SMEC Testing services P/L, Dec 2003.
• SMEC reply of June 2004 to Dept. of Infrastructure Planning & Natural Resources requirements on de-watering during construction and treatment/disposal of tail-water.
• Day Design P/L acoustic report on traffic and aircraft noise and construction to achieve acceptable internal acoustic levels in residential flats April 2006.
• Colour scheme including colour swatches of materials/finishes.
• Energy Australia Design & Contracts Division requirements for Electrical sub-station on the site. Various communications on compliance of drawings.
• Day Design P/L vibration report on underground trains adjacent
• Building Code of Australia Compliance Certification by BCA Logic P/L accredited certifier, Ross Payne, July 2005.
• Mechanical, Electrical, Hydraulics and Fire Protection Building Services report on design standards to be incorporated by CME Building Services Design P/L consulting engineers dated April 2004.
• Direct Sunlight penetration diagrams for typical residential units by Chester & Chester Architects dated July 2005.
• NatHERS energy rating assessment certificates for the residential flats by ABSA Certifier Paul Brennan No. 20069
• Construction & Waste management plan by CCA Project Management P/L dated 12 Sept 2004.
• State Environmental Planning Policy No.65 (SEPP65) Certification by Maurice Beraldo Architect dated April 2006.
  

25 The respondent’s evidence was heard from Mr R. Dowsett, Manager Development Assessment for the council.

26 The applicant’s evidence was heard from Mr. M. Beraldo, architect.

27 Mr Ingham a consultant town planner had been agreed by the parties to be appointed by the Court. He had provided a report in January 2005 but it was not tendered, nor was he called. I was told the matters he raised had been the subject of negotiations and amendments to the proposal as now before the Court.

28 The land is zoned Business Special 3(b) under the Botany Local Environmental Plan 1995 (LEP). The proposal is permissible with consent of the responsible authority.

29 The objectives of the zone are:

a) To control the physical size and characteristics of the additional business localities to minimise their impact on the economic viability of the existing retail business centres in the City of Botany Bay, and
b) To promote the patronage of businesses in the zone, predominantly by local pedestrians, where appropriate, and
c) To encourage development that provides a positive contribution to the streetscape and public domain, and
d) To promote the vitality of the land in the zone by permitting residential development in the zone, and
e) To encourage energy efficiency and energy in all forms of development in the zone, and
f) To promote best practice stormwater management in the zone, and
g) To capitalise on the location of transport facilities in or near the zone.

30 In regard to the latter objective, I noted that although there are bus routes nearby in Gardners Rd and O’Riordan St, there are none in Bourke St past the site and railway station. Mr Dowsett said the RTA had not introduced bus services to the station due to the lack of patronage of the railway up to the present. The proposal makes provision for a bus bay on the Bourke St frontage of the piazza for taxis, car drop off/pickup and future buses. The council and Mr Dowsett presumed the transport interchange would occur when demand required it. In the meantime bus routes exist about a city block from the site, and that is within easy walking distance.

31 Mr Beraldo noted that bus shelters etc were not proposed by the applicant at the present time, however since the bus bay would be on public land, they could be installed when the time came. There is no projected time frame for the commencement of bus services to the station. I note the deed of agreement with the applicant requires a number of items to be installed in the public open space for the convenience of the public.

32 I noted that the footpath along Bourke St would be a principal pedestrian route for customers of the commercial spaces of the site and for future residents of the locality and others to walk to the piazza and the pedestrian crossing to the station. The experts agreed, and it was noted that the bus bay extended at its north end to reduce the width of the public footpath to 2m from the proposed building, a “pinch point” for pedestrians. At the south end the bus bay retained a normal 3.6m width to the public footpath. The parties agreed to reduce the length of the bus bay to keep a 3.6m footpath width at the north end.

33 Bearing in mind the negotiations that had gone on between the parties, the adoption of a new location for the public open space compared to the Mascot Station DCP and the changes to the previously approved master plan for the ING site and the provisions of SEPP65, I asked about the requirements for a Site Masterplan to be prepared and adopted by the Dept of Planning, and the Mascot Station DCP cl 2.5.2 requirement for a master plan for sites over 4000 sq m area.

34 The parties submitted that a “master plan” for the purposes of SEPP65 has the same meaning as in cl 92A of the Regulations 2000. This clause is repealed but relevantly only applied to a master plan made or adopted by the Minister or public authority. Also a design review panel as per cl 3 of SEPP65 has not been constituted for Botany Bay City. Accordingly the provision does not apply.

35 In the regard to the DCP provision, the development application and the design of the proposal has been in negotiation for 2 years and has changed considerably to comply with the Mascot Station DCP and to take account of the ING site adjoining and the railway station so that those parts of the precinct are now co-ordinated to produce a good planning outcome under the applicable statutes and controls. The council regards the Exhibit GG plans and the landscape plans in Exhibit C as a master plan for the purposes of the DCP.

36 Clause 5 of the LEP contains the general objectives of the statute, and the applicable matters are satisfied according to the evidence.

37 Clause 12A of the LEP allows the calculation of Floor Space Ratio (FSR) for the site to include the land to be dedicated as public reserve. The proposal complies with the 3.3:1 FSR statute applicable.

38 Clause 13 on aircraft noise has been analysed and appropriate construction incorporated to provide acceptable internal residential noise levels.

39 Clause 13A on traffic and railway noise and vibration has also been investigated and appropriate construction incorporated to achieve acceptable noise and vibration levels for residential habitation.

40 Clause 15 requires traffic, parking, access and servicing of sites on certain roads in Schedule 5 of the LEP to be assessed for safety and efficiency. The schedule names Bourke ROAD, whereas the street past the site is Bourke STREET. Nevertheless the traffic reports in evidence show that the site has all the parking and servicing facilities that it needs and the accesses off Church Ave and John St will enable efficient and safe traffic movements.

41 Clause 18A of the LEP requires a number of criteria to be satisfied before a consent may be given. Mr Dowsett reports that the documentary evidence and the investigations involved have satisfied all those criteria and appropriate conditions are incorporated in the Consent Orders.

42 Clause 23A relates to acquisition for roads in the Mascot Precinct, and the Mascot Station DCP identifies the bus bay or lay-by proposed as part of the development. Also road widening of Church Ave shown in the DCP has been incorporated. As a result that statute is satisfied.

43 Clause 29 applies to contaminated land and the test bores and studies carried out have identified some remediation necessary and the means to carry it out successfully. There is no uncertainty in regard to its achievement.

44 Clause 30A applies to acid sulphate soils, and only minor amounts occur on the site and the management plan and the conditions of DIPNR incorporated in the conditions of Consent Orders will successfully deal with that.

45 On the height limit of 9 storeys under cl 6.3.3 of the Mascot Station DCP, the parties have negotiated 11 storeys partly to enable the maximum FSR to be achieved based on the original site area prior to the deduction of the land to be dedicated for the public open space and road widening and bus bay, and partly due to the relocation of the public open space from the Church Ave corner to be opposite the railway station and partly due to the provision of the pedestrian piazza giving access to the ING site. These were key improvements to the original application that warranted consideration of the extra 2 storeys.

46 The added height is seen to cause no unacceptable environmental impact, and serves to achieve the Rationale of the height control in the Mascot Station DCP that buildings at the station are to be higher, in order to highlight and designate the location of the station and the active retail portion of Bourke St adjoining. The height of the proposal is still below 45.35 AHD required by the Sydney Airport Corporation.

47 I became concerned that the South Tower has 70 apartments and only one lift to serve them all. Apart from the possibility of long delays at peak times in the lift coming to each floor, it seems impractical to have one lift in an 11-storey building. What would happen when the one lift is out of action? The parties said it is adequate, and provided in Exhibit FF a calculation from Schindler Lifts on the service intervals. The exhibit indicates a maximum delay (or wait time) of 100 seconds as a worst case and 50 seconds being the average at peak demand. Also Schindler says it provides preventive maintenance programs to eliminate downtimes. Both parties support this evidence, and it seems to be a matter on which one could not justify refusal of the proposal.

48 A report in exhibit 3 by Mr Dowsett for council dated 6 March 2006, assessed all the matters under the statutes and the controls and recommended approval of the proposal to the Court. He found nothing that would justify refusal of the proposal in its final amended design, subject to the imposition of appropriate conditions. The Mayor subsequently received a report in Exhibit 14 dated 7 April 2006 from Mr Dowsett with that recommendation, and a further recommendation of Consent Orders. The Mayor, Cnr R. Hoenig authorised Exhibit HH with the updated conditions in Exhibit 6. Those conditions deleted earlier Deferred Commencement conditions and referred to the agreements between the parties and the ING agreement. The agreements have been forwarded to the Court for attachment to the Consent Orders.

49 Overall, I agree with Mr Dowsett’s assessment, and have formed the opinion that all relevant matters for consideration under the statutes and controls have been dealt with satisfactorily.

50 Therefore the orders of the Court by Consent of the parties are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development Applicant 2004/0366 lodged with the Botany Bay City Council on 8 March 2004 to demolish the existing buildings and construct a new multiunit residential development incorporating a retail/commercial use, parking amenities and land dedication of land known as 37-39 Church Avenue, 8 Bourke Street and 36-42 John Street, Mascot is approved as shown in the plans and documents identified in Condition 1 of Annexure ‘A’ hereto, all as amended by and built in accordance with the conditions in Annexure “A”.
3. The exhibits except for B, C, F, AA, BB, CC, DD, EE, FF, GG, HH, 3, 6, 7, 8, 9, 11, 12 and 14 are returned.

________________________

K G Hoffman
Commissioner of the Court
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