Chapter and Co (10) Pty Ltd v Bayside Council

[2024] NSWLEC 1438

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chapter and Co (10) Pty Ltd v Bayside Council [2024] NSWLEC 1438

Hearing dates:

Conciliation Conference 14 March, 10 April, 30 April, 14 May, 21 May 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away by reason of the amendment of Development Application No DA-2023/184 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $10,500.

(2) The appeal is upheld.

(3) Development Application No DA-2023/184, lodged on 14 July 2023, as amended, for alterations and additions to the approved seven (7) storey self-storage development including one (1) additional level, increase in parking, and amendments to signage at 21 Ossary Street, Mascot, is determined by the grant of consent subject to the conditions at Annexure “A”.

Catchwords:

APPEAL – Development application –alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 5, 8.7, 8.10, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34

Bayside Local Environmental Plan 2021, cll 4.3, 4.4, 4.6, 5, 6.1, 6.3, 6.7, 6.8, 6.10, 6.11

Environmental Planning and Assessment Regulation 2021, ss 37, 38

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

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5

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

Texts Cited:

Bayside Development Control Plan 2022

Category:

Principal judgment

Parties:

Chapter and Co (10) Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/268386

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA-2023/184) (Development Application) for alterations and additions to the approved seven-storey self-storage development including three additional levels, reduction in office space, three additional car spaces and change to the signage design, located on land identified as Lot 12 in Deposited Plan 1137430, known as 21 Ossary Street, Mascot (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 14 July 2023.

4. On 28 August 2023, the proceedings were commenced by the applicant, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

5. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 14 March 2023 and adjourned on several occasions. I presided over the conciliation conference.

6. Further amended plans and documents were provided to the Court as part of the conciliation process on 3 June 2024 (Amended Development Application) cited at [46]. The amendments can be summarised as follows:

1. relocation of driveway;

2. addition of landscape strip;

3. reduction of administration area and removal of office area;

4. relocation of switch room, lift 1 and 2, and garbage;

5. reduction in storage area, including re-configuration of storage cages and addition of car parking;

6. reduction in additional levels sought from 3 levels to 1 level;

7. additional signage and façade details with an addition of a recess to the façade; and

8. addition of stair pressurisation fan room.

7. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

8. 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 considerations

9. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

10. The applicant is the registered proprietor of the Subject Land and provided consent to the Development Application when it was lodged with the respondent (tab 3 of the Amended Development Application).

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

12. The Amended Statement of Environmental Effects prepared by Sutherland & Associates Planning dated May 2024 (Amended SEE) (Tab 4 of the Amended Development Application, p 16) refers to the Detailed Site Investigation prepared by Epic Environmental (DSI) that was relied upon for Development Consent No DA-2021/391 which concluded that the Subject Land was suitable for a self-storage facility without the need for further investigation or remediation of the land.

13. The parties are satisfied that the Subject Land is suitable for the proposed use as the Subject Land is the same site for Development Consent No DA-2021/391 and the Amended Development Application is an alterations and additions of Development Consent No DA-2021/391. Further, conditions of consent have been imposed to address any future contamination issues that may arise (see Condition 72 of the Agreed Conditions).

14. Having regard to the DSI and Agreed Conditions, I am satisfied that the matters in s 4.6(1) of the RH SEPP have been considered and the Subject Land is suitable for the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relates to the preservation and management of vegetation in non-rural areas which includes the Bayside Local Government Area and land in the E3 Productivity Support zone.

16. The Amended Development Application does not propose the removal of any trees. Notwithstanding this, the preservation and management of trees that are to be planted has been addressed in Conditions 11, 32, 39, 42, 62 and 104 of the Agreed Conditions.

17. The Parties are satisfied that the Development Application, as amended, is consistent with the aims of Chapter 2 of the BC SEPP.

State Environmental Planning Policy (Industry and Employment) 2021

18. Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP) relevantly provides that a consent authority must not grant consent to an application to display signage unless the consent authority is satisfied that:

1. the signage is consistent with the objectives of Chapter 3 set out in s 3.1(1)(a); and

2. the signage the subject of the application satisfies the assessment criteria specified in Sch 5.

19. The Amended SEE (pp 16-18) concludes that:

1. the proposed signage is appropriate having regard to the context of the area, is of high quality and design and is consistent with the character of the zone;

2. there will be no unreasonable impacts to the amenity and views of the area;

3. the sign does not disrupt the architectural integrity of the building and will be securely affixed to the building; and

4. the proposed signage will not impact the safety of the public and will assist the public to clearly identify the site.

20. The parties submit and I accept that the proposed signage is consistent with the objectives and the schedule, in that it is compatible with the desired amenity and visual character of the area, will provide effective communication by displaying the development’s name and will be of a high-quality design and finish.

21. In determining the Amended Development Application, I confirm that I am satisfied of the matters set out in s 3.6 of the IE SEPP.

Bayside Local Environmental Plan 2021

22. The Site is zoned E3 Productivity Support under the Bayside Local Environmental Plan 2021 (BLEP). Accordingly, self-storage premises are permitted with consent in the E3 zone. I have had regard to the zone objectives which are extracted below:

• To provide a range of facilities and services, light industries, warehouses and offices.

•  To provide for land uses that are compatible with, but do not compete with, land uses in surrounding local and commercial centres.

•  To maintain the economic viability of local and commercial centres by limiting certain retail and commercial activity.

•  To provide for land uses that meet the needs of the community, businesses and industries but that are not suited to locations in other employment zones.

•  To provide opportunities for new and emerging light industries.

•  To enable other land uses that provide facilities and services to meet the day to day needs of workers, to sell goods of a large size, weight or quantity or to sell goods manufactured on-site.

•  To promote redevelopment that is likely to contribute to the locality, including by improving the visual character of the locality, improving access and parking, reducing land use conflicts and increasing amenity for nearby residential development.

•  To encourage uses in arts, technology, production and design sectors.

•  To promote businesses along main roads and to encourage a mix of compatible uses.

23. I note that the parties agree that the Amended Development Application is consistent with these objectives.

24. Pursuant to cl 4.3 of the BLEP, the maximum building height permissible for the Subject Land is 44m. The parties agree that the Amended Development Application complies with this standard.

25. Pursuant to cl 4.4 of the BLEP, a maximum floor space ratio (FSR) development standard of 3.55:1 applies to the Subject Land (FSR Standard). The Amended Development Application proposes a FSR of 5.32:1, equating to a variation of 49.4%. Development Consent No DA-2021/391 relating to the Subject Land approved a 36% variation to the FSR Standard. The parties agree that the incremental increase proposed by the Amended Development Application is 13.4% (albeit equating to a total variation of 49.4%). The Amended Development Application is accompanied by a cl 4.6 request prepared by Sutherland & Associates Planning dated April 2024 (FSR Request) (tab 2 of the Amended Development Application).

26. The FSR Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6 of the BLEP and concludes that:

1. Compliance with the FSR Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the BLEP), because the development achieves the objectives of the FSR Standard (as set out in cl 4.4(1) of the BLEP) notwithstanding the breach.

2. There are sufficient environmental planning grounds to justify contravening the FSR Standard (pursuant to cl 4.6(3)(b) of the BLEP), including that:

1. compliance with the FSR Standard has already been deemed to unreasonable and unnecessary in the circumstances (see Development Consent No DA-2021/391), and

2. the proposed development:

1. retains the already established appropriate side, rear and front setbacks, landscaping, design and architectural expression;

2. remains compliant with the height control applying to the Subject Land;

3. will not result in any significant or adverse change in relation to traffic impacts; and

4. responds to the strong and growing need for self storage floor space and allows for the most efficient and economic use of the land having regard to the objects at s 5(a)(i) and (ii) of the EPA Act.

3. The proposed development will be in the public interest because it is consistent with the objectives of the FSR Standard and the objectives of the E3 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the BLEP).

27. The respondent does not contend that the contravention of the FSR Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard pursuant to cl 4.6(5) of the BLEP.

28. The parties submit, and I accept, that the FSR Request has adequately addressed, for the purpose of cl 4.6(4), the matters required to be demonstrated by 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the FSR Standard set out in cl 4.3(1)(a) and the objectives for development in the E3 zone, for the reasons given in the FSR Request.

29. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the BLEP. I find no grounds on which the Court should not uphold the FSR Request.

30. Pursuant to cl 6.1(2) of the BLEP relating to Acid Sulfate Soils, as the Subject Land is mapped as Class 2, development consent is required for works below the natural ground surface or by which the water table is likely to be lowered. Further, pursuant to cl 6.1(3), development consent must not be granted for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works. The Amended Development Application is for alterations and additions to the approved development on the Subject Land (see Development Consent No DA-2021/391) which was supported by an Acid Sulfate Soils Management Plan prepared by Epic Environmental (ASS Plan). The Amended Development Application similarly relies on the ASS Plan (see p 24 of the Amended SEE).

31. The parties submit and I accept that cl 6.1 of the BLEP is addressed by the Amended Development Application.

32. Pursuant to cl 6.3 of the BLEP relating to stormwater, a consent authority must be satisfied of various matters before granting development consent. The parties agree that the Amended Development Application does not propose any changes to the modelling of the catchment, OSD size requirements or any ground level stormwater infrastructure which was approved under Development Consent No DA-2021/391 (see Amended SEE, p 24).

33. The parties submit and I accept that cl 6.3 of the BLEP is addressed by the Amended Development Application.

34. Pursuant to cl 6.7 of the BLEP, a consent authority must not grant consent to a development application which would penetrate the Limitation or Operation Surface, unless it has consulted with the relevant Commonwealth body. The Subject Land is subject to a 51 metre AHD Obstacle Limitation Surface. The Development Application does not penetrate the Obstacle Limitation Service (see Tab 1 of the Amended Development Application. Drawing No. A301-D – Elevation North (Rev E)).

35. Pursuant to cl 6.8 of the BLEP, the consent authority must not grant consent to development on land that is in the vicinity of Sydney (Kingsford-Smith) Airport and in an Aircraft Noise Exposure Forecast contour of 20 or greater unless it has considered and is satisfied that the development will not result in an increase in the number or dwellings or people affected by aircraft noise and will also satisfy the indoor design sound levels for aircraft noise. The Subject Land is located within the 25 – 30 contour on the Aircraft Noise Exposure Forecast. The proposed self-storage premise is considered conditional within the 25 – 30 contour as confirmed in the Amended SEE (see pp 24-25).

36. Pursuant to cl 6.10 of the BLEP, consent must not be granted to a development unless the consent authority has considered and is satisfied that the development exhibits design excellence. In accordance with cl 6.10(5)(a), development consent must not be granted to a development in respect of a building that will be higher than 12 metres or 3 storeys but not higher than 40 metres or 12 storeys unless a design review panel has reviewed the documents and the consent authority takes into account the findings of the review panel. The proposed development will be 8 storeys, with a height of building less than 40 metres (see Tab 1 of the Amended Development Application, Drawing No. A301-D (Rev E) dated 11 April 2024). The parties confirm that the Bayside Review Panel reviewed the proposed development on 26 October 2023 and the respondent has taken into account the findings of the Bayside Review Panel. A copy of the relevant minutes of the meeting is at Tab 5 of the Amended Development Application. The parties agree that Amended Development Application has addressed these findings.

37. The parties submit and I accept that the Amended Development Application exhibits design excellence for the reasons set out at pp 25 - 27 in the Amended SEE, where it relevantly confirmed:

1. the Amended Application will produce a high-quality building of high architectural standards;

2. the proposal will be of high-quality and there is no change proposed in relation to the impact of the proposal on the public domain; and

3. the proposal is compliant with the Bayside Development Control Plan 2022 (BDCP) and is appropriate and suitable for the land that it is proposed to be built on.

38. Pursuant to cl 6.11 of the BLEP, development consent must not be granted to a development unless the consent authority is satisfied that services essential for the development are available or that adequate arrangements have been made to make them available. The parties submit and I accept that water and electricity supply are already available to the Subject Land and appropriate measures will be incorporated as part of construction to facilitate the disposal and management of sewage as confirmed by the Amended SEE (see p 27).

Bayside Development Control Plan 2022

39. The parties submit and I accept that the provisions of the Bayside Development Control Plan 2022 (BDCP) that are of relevance have been taken into account in assessing the Amended Development Application.

40. The parties agree that the revised plans demonstrate a satisfactory built form outcome when measured against the applicable zoning objectives and BDCP.

Other jurisdictional matters – s 4.15 of the EPA Act

41. The matters set out in s 4.15(1)(a), (b) and (c) of the EPA Act have been considered above to the extent they are relevant to the Amended Development Application.

42. In relation to s 4.15(1)(d) of the EPA Act, the Development Application, as lodged, was notified between 20 September and 5 October 2023. No submissions were received.

43. The parties agree that the Amended Development Application, in conjunction with the Agreed Conditions, is in the public interest for the purposes of s 4.15(e) of the EPA Act.

Conclusion

44. 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.

44. 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.

45. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application no DA-2023/184 in accordance with the amended plans and additional information listed below:

TAB	DOCUMENT	DATE
1.	Amended Architectural Plans (Up to Rev F), prepared by Mijollo International • A100-D – Cover Sheet (Rev D) – 11 April 2024 • A101-B – Site Plan (Rev B) – 16 June 2023 • A102-B – Site Analysis (Rev B) – 16 June 2024 • A103-D – GFA Diagrams (Rev D) – 28 March 2024 • A201-F – Plan Level 01 (Rev F) – 11 April 2024 • A202-E – Plan Level 02 - 07 (Rev E) – 11 April 2024 • A203-E – Plan Level 08 (Rev E) – 11 April 2024 • A204-B – Plan Roof Level (Rev B) – 11 April 2024 • A301-D – Elevation North (RevE) – 11 April 2024 • A302-E – Elevation East (Rev E) – 11 April 2024 • A303-E – Elevation South (Rev E) – 11 April 2024 • A304-E – Elevation West (Rev E) – 11 April 2024 • A310-B – Material Finishes (Rev B) – 16 June 2023 • A401-D – Section A-A (Rev D) – 11 April 2024 • A402-D – Section B-b (Rev D) – 11 April 2024 • A620-B – Passive Design (Rev B) – 16 June 2023	Various Dates
2.	Amended Clause 4.6 Variation Request – Floor Space Ratio Development Standard, prepared by Sutherland & Associates Planning	April 2024
3.	Owner’s consent	26 June 2023
4.	Updated Statement of Environmental Effects, prepared by Sutherland & Associates	May 2024
5.	Bayside Design Review Panel Meeting Minutes	26 October 2023

2. The applicant filed the amended plans and documents outlined above with the Court on 3 June 2024.

Orders

47. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away by reason of the amendment of Development Application No DA-2023/184 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $10,500.

2. The appeal is upheld.

3. Development Application No DA-2023/184, lodged on 14 July 2023, as amended, for alterations and additions to the approved seven (7) storey self-storage development including one (1) additional level, increase in parking, and amendments to signage at 21 Ossary Street, Mascot, is determined by the grant of consent subject to the conditions at Annexure “A”.

N Targett

Acting Commissioner of the Court

​​​​​​​ 268386.23 Annexure A

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Decision last updated: 26 July 2024