Chosen Group Developments Pty Ltd v Bayside Council

[2022] NSWLEC 1334

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chosen Group Developments Pty Ltd v Bayside Council [2022] NSWLEC 1334

Hearing dates:

Conciliation conference on 10 and 25 May 2022

Date of orders:

29 June 2022

Decision date:

29 June 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant is 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 $11,000 within 14 days of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA-2021/136, as amended, for the development of 11-13 Gertrude Street, Wolli Creek, including the construction of a new nine storey residential flat building with basement and ground floor level parking and communal open space, subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – residential flat building – breach of floor space ratio and height development standards – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, Sch 1, cll 50, 55

Land and Environment Court Act 1979, s 34

Rockdale Local Environmental Plan 2011, cll 4.3, 4.4, 4.6, 6.1, 6.2

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30

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

Texts Cited:

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

Category:

Principal judgment

Parties:

Chosen Group Developments Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/31903

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a 9-storey residential flat building with basement and ground level parking at 11-13 Gertrude Street, Wolli Creek. The development application was lodged with the respondent on 6 April 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 10 May 2022 and 25 May 2022. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 22 June 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amendments change elements of the built form to achieve better consistency with surrounding development, to increase the deep soil and to have a rear building alignment that aligns with the party wall of the development at 15-17 Gertrude Street. The amended development application also provides amended reports to address issues raised by the respondent in the Statement of Facts and Contentions filed on the appeal.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional pre-requisites that the parties have identified and how they are satisfied.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is located in the R4 High Density Residential Zone under the Rockdale Local Environmental Plan 2011 (RLEP 2011) and development for the purposes of a residential flat building is permissible with development consent in the zone.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 29.5m pursuant to cl 4.3 of the RLEP 2011, and the proposed development has a compliant building height of 29.2m at the highest parapet but has a maximum height of 30m at the top of the lift overruns. This results in a non-compliance of 500mm on a minor portion of the lift overruns. I am satisfied that the written request prepared by GSA Planning dated May 2022, lodged pursuant to cl 4.6 of the RLEP 2011, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the proposed development to be of 9-storeys in height with a lift accessing each floor, which is consistent with the 9-storey built form in the precinct and streetscape. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (FSR) development standard. The development standard establishes a maximum FSR of 2.2:1, pursuant to cl 4.4 of the RLEP 2011. The proposed development has a gross floor area of 2747m² and an FSR of 2.47:1, which is a 12.6% exceedance of the standard and an exceedance of the permitted gross floor area by 305m². I am satisfied that the written request of GSA Planning dated May 2022, lodged pursuant to cl 4.6 of the RLEP 2011, adequately establishes sufficient environmental planning grounds that justify the breach by demonstrating that the proposed FSR will result in a built form that will be compatible with the bulk, scale and form of the adjacent developments along Gertrude Street, including ensuring a rear building alignment that is compatible with neighbouring development. I am also satisfied that the written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance, and that, for the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard.

• The site is mapped as having Class 3 Acid Sulfate Soils and the proposed development involves excavation that will likely lower the water table more than 1m below the natural ground surface. As such, cl 6.1 of the RLEP 2011 applies. Consistent with the requirements of cl 6.1(3), an Acid Sulfate Soils Management Plan has been prepared for the proposed development and I am satisfied that any disturbance of acid sulfate soils will be managed to minimise adverse impacts.

• I have considered matters in cl 6.2(3) of the RLEP 2011, concerning earthworks, based on the Geotechnical Investigation Report dated 26 October 2020, the Remedial Action Plan and the Acid Sulfate Soils Management Plan.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the EPA Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned, which is a revised Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 25 May 2022. The report confirms that the site is able to be remediated in accordance with a Remedial Action Plan dated 25 May 2022 and, therefore, will be made suitable for the proposed development.

• The amended development application is accompanied by a statement of a qualified designer dated 19 May 2022 that verifies the design of the development, as required by cl 50(1A) and (1AB) of the EPA Regulation 2000.

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. 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 applicant amending the development application DA-2021/136 made on 30 May 2022 to rely on the documents and plans specified below:

Plan No.	Revision No.	Plan Title.	Drawn By.	Dated.
1. Architectural Plans
A001	D	Site Plan	DSTUDIO	19 May 2022
A100	F	Basement Floor Plan	DSTUDIO	27 May 2022
A101	F	Ground Floor Plan	DSTUDIO	27 May 2022
A102	F	First Floor Plan	DSTUDIO	24 May 2022
A103	D	Level 2 Floor Plan	DSTUDIO	19 May 2022
A104	E	Level 3 & 6 Floor Plan	DSTUDIO	19 May 2022
A105	F	Level 4 & 5 & 7 Floor Plan	DSTUDIO	24 May 2022
A106	E	Level 8 Floor Plan	DSTUDIO	19 May 2022
A107	D	Roof Plan	DSTUDIO	19 May 2022
A200	D	North Elevation	DSTUDIO	19 May 2022
A201	D	South Elevation	DSTUDIO	19 May 2022
A202	D	East Elevation	DSTUDIO	19 May 2022
A203	D	West Elevation	DSTUDIO	19 May 2022
A300	D	Section A	DSTUDIO	19 May 2022
A301	E	Section B	DSTUDIO	19 May 2022
A303	D	Section C	DSTUDIO	19 May 2022
A304	D	Section D	DSTUDIO	19 May 2022
A305	D	Driveway Ramp	DSTUDIO	19 May 2022
A400	F	GFA Calculation	DSTUDIO	27 May 2022
A401	C	Deep Soil Calculation	DSTUDIO	19 May 2022
A800	E	External Finishes and Materials	DSTUDIO	19 May 2022
A903	C	Height Blanket	DSTUDIO	19 May 2022
2. Landscape Plans
20-4312 L01	D	Landscape Plan	Zenith Landscape Designs	30 May 2022
20-4312 L02	D	Landscape Plan	Zenith Landscape Designs	30 May 2022
20-4312 L03	D	Landscape Plan	Zenith Landscape Designs	30 May 2022
20/4312 L04	D	Landscape Plan	Zenith Landscape Designs	30 May 2022
3. Stormwater Plans
ST01	F	Basement Stormwater Drainage Plan	Stronghold Engineers	19 May 2022
ST02	F	Site Stormwater Drainage Plan	Stronghold Engineers	19 May 2022
ST03	F	Detail Stormwater Drainage Plan	Stronghold Engineers	19 May 2022
ST04	F	First Floor Stormwater Drainage Plan	Stronghold Engineers	19 May 2022
ST05	F	Soil and Water Management Plan and Details	Stronghold Engineers	19 May 2022

Title	Prepared By	Dated.
Wind Assessment Report	Ana Civil P/L	30 May 2022
Detailed Environmental Site Assessment	Environmental Consulting Services	25 May 2022
Remediation Action Plan	Environmental Consulting Services	25 May 2022
Acid Sulfate Soil Management Plan	Environmental Consulting Services	22 September 2021
Environmental Report Update Summary	Environmental Consulting Services	25 May 2022
Flood Risk Management Report	Kozarovski and Partners	26 May 2022
Flood Assessment - Existing Conditions	Kozarovski and Partners	25 August 2021
Flood Assessment - Proposed Conditions	Kozarovski and Partners	26 May 2022
Amended Clause 4.6 Exception - Floor Space Ratio	GSA Planning	May 2022
Amended Clause 4.6 Exception - Height of Buildings	GSA Planning	May 2022
ADG SEP65 Schedule	DSTUDIO	19 May 2022
ADG Solar Table with 4-10 Gertrude	DSTUDIO	19 May 2022
ADG Solar Table without 4-10 Gertrude	DSTUDIO	19 May 2022
SEPP 65 Design Verification Statement	DSTUDIO	19 May 2022
BASIX Certificate 1182426M_03	Building & Energy Consultants Australia	24 May 2022
BASIX Stamped Architectural Plans	DSTUDIO	24 May 2022
Operational Waste Management Plan	Elephants Foot	26 May 2022
Suneye Shadow Diagrams	AE Design Partnership Pty Ltd	18 May 2022
Traffic Report	Varga Traffic Planning Pty Ltd	19 May 2022

2. That the amended application has been uploaded on the NSW Planning Portal on 22 June 2022.

3. That the Applicant has subsequently filed the amended application with the Court on    23 June 2022.

Orders

9. The Court orders that:

1. The applicant is 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 $11,000 within 14 days of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application DA-2021/136, as amended, for the development of 11-13 Gertrude Street, Wolli Creek, including the construction of a new nine storey residential flat building with basement and ground floor level parking and communal open space, subject to the conditions contained in Annexure A.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A.pdf

**********

Decision last updated: 29 June 2022