Eastern Pacific Design and Construct Pty Ltd v Bayside Council

[2021] NSWLEC 1030

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Eastern Pacific Design & Construct Pty Ltd v Bayside Council [2021] NSWLEC 1030

Hearing dates:

Conciliation conference on 18 December 2020

Date of orders:

15 January 2021

Decision date:

15 January 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 2 of the General Conditions of Consent.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $18,000.00 within 21 days of the date of these orders.

(3) The Applicant’s written request pursuant to clause 4.6 of Rockdale Local Environmental Plan 2011 seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of Rockdale Local Environmental Plan 2011 prepared by Think Planners Pty Ltd dated 22 October 2020 is upheld.

(4) The Applicant’s written request pursuant to clause 4.6 of Rockdale Local Environmental Plan 2011 seeking to justify the breach of the maximum floor space ratio development standard pursuant to clause 4.4 of Rockdale Local Environmental Plan 2011 prepared by Think Planners Pty Ltd dated 22 October 2020 is upheld.

(5) The appeal is upheld.

(6) Development Application No. DA-2019/398, lodged on 4 November 2019, for the demolition of existing lots and construction of a 5-storey mixed used development comprising of 45 units, 3 commercial tenancies and a two-level basement with carparking spaces at 262-270 Rocky Point Road, Ramsgate is approved subject to conditions annexed hereto and marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Rockdale Local Environmental Plan 2011

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

Category:

Principal judgment

Parties:

Eastern Pacific Design & Construct Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
P Jayne (Solicitor) (Applicant)
A Epstein (Solicitor) (Respondent)

Solicitors:
Madison Marcus Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/5057

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the Council’s deemed refusal of a development application (DA 2019/398) for demolition works and the construction of a mixed-use development comprising 45 residential units and 3 commercial tenancies with a two-level basement carpark at 262 – 270 Rocky Point Road, Ramsgate.

2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. 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 18 December 2020. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions in Annexure A.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the decision is one that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard I note the following:

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

6. For the purposes of cll 143A and 154A of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) compliance with SEPP 65 is required.

7. The applicant’s architect has prepared a Design Verification Statement in satisfaction of cl 50(1AB) of the EPA Regulation. I accept that the Statement addresses all relevant matters and that compliance with the SEPP 65 is satisfied.

BASIX Certificate

8. The applicant has provided a current BASIX Certificate for the development.

Rockdale Local Environmental Plan 2011 (RLEP 2011)

9. The development breaches the height of buildings development standard in cl 4.3 of the RLEP 2011 and floor space ratio (FSR) development standard in cl 4.4.

10. To address these jurisdictional issues, the applicant has made two written requests under cl 4.6 of the RLEP 2011 for a variation of each development standard.

The height standard

11. Clause 4.3 of the RLEP 2011 provides as follows:

(1) The objectives of this clause are as follows—

(a) to establish the maximum limit within which buildings can be designed and floor space can be achieved,

(b) to permit building heights that encourage high quality urban form,

(c) to provide building heights that maintain satisfactory sky exposure and daylight to buildings, key areas and the public domain,

(d) to nominate heights that will provide an appropriate transition in built form and land use intensity.

(2)  The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A) Despite subclause (2), the height of a building may exceed the maximum height shown for the land on the Height of Buildings Map by an additional—

(a) 12 metres—if the building is in Area A identified on the Height of Buildings Map and on a lot having an area of at least 1,500 square metres,

(b) 6 metres—if the building is in Area B identified on the Height of Buildings Map and on a lot having an area of at least 2,000 square metres,

(c) 6 metres—if the building is in Area C identified on the Height of Buildings Map and on a lot having an area of at least 1,200 square metres,

(d) 15 metres—if the building is in Area D identified on the Height of Buildings Map and on a lot having an area of at least 1,000 square metres,

(e) 3 metres—if the building is in Area E identified on the Height of Buildings Map and on a lot having an area of at least 600 square metres,

(f) 9 metres—if the building is in Area G identified on the Height of Buildings Map and on a lot having an area of at least 1,000 square metres,

(g) 12 metres—if the building is in Area H identified on the Height of Buildings Map and on a lot having an area of at least 2,000 square metres,

(h) 3 metres—if the building is in Area I identified on the Height of Buildings Map and on a lot having an area of at least 1,000 square metres,

(i) 9 metres—if the building is in Area J identified on the Height of Buildings Map and on a lot having an area of at least 2,000 square metres,

(j) 3 metres—if the building is in Area L identified on the Height of Buildings Map and on a lot having an area of at least 800 square metres,

(k) 25.15 metres—if the building is in Area M identified on the Height of Buildings Map and on a lot having an area of at least 9,000 square metres.

(2B) Despite subclause (2), the maximum height of a building that is in Area K identified on the Height of Buildings Map and that is used only for the purpose of seniors housing is—

(a) 14.5 metres—if the building is within 38 metres of Harrow Road, and

(b) 9.5 metres—if the building is not within 38 metres of Harrow Road.

12. The applicant’s cl 4.6 written request - prepared by Think Planners Pty Ltd dated 22 October 2020 in respect of the breach of the height standard in cl 4.3 of the RLEP 2011 states that the habitable parts of the building generally comply with the maximum 21m height limit under cl 4.3. It is the lift overrun and stairs to the rooftop common open space , and some plant screening which exceed the development standard.

13. The extent and location of the breaches of the height standard are detailed at pp 14-16 of the written request. They are described as generally minor breaches because they do not interfere with the development achieving the objectives of the clause.

14. In that regard, I note that the request records that the height of the development maintains an appropriate transition in built form and land use intensity given the surrounding development and recently approved development to the north. The upper level of the building is designed to be recessed so that the top of the building will not be visually prominent when viewed from the street level below. Nor will the height of the protrusion be visible from the adjoining properties. This aspect of the design clearly aligns with the stated objectives of the clause.

15. Furthermore, the additional height facilitates the delivery of the rooftop common area that provides a quality common open space that is partly covered to enable year round use and also enables compliance with the required solar access mid-winter that would not be achievable in the absence of the rooftop common area. It is also noted that the departure from the height control maintains satisfactory sky exposure to daylight to buildings, key areas and the public domain. The proposal presents a high-quality urban form and provides suitable daylight access to surrounding properties.

The floor space ratio standard

16. Clause 4.4 of the RLEP 2011 provides as follows:

(1) The objectives of this clause are as follows—

(a) to establish the maximum development density and intensity of land use, accounting for the availability of infrastructure and generation of vehicular and pedestrian traffic, in order to achieve the desired future character of Rockdale,

(b) to minimise adverse environmental effects on the use or enjoyment of adjoining properties,

(c) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing or likely to undergo a substantial transformation.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A) The floor space ratio for a building on land that is in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential and that has an area of less than 460 square metres is not to exceed 0.55:1.

(2B) Without limiting subclause (2), the ratio of the gross floor area of all buildings (or parts of buildings) that are residential accommodation to the site area is not to exceed—

(a) (Repealed)

(b) 2.25:1 if the site is at 213 Princes Highway and 4 Wardell Street, Arncliffe.

(2C) Despite subclause (2), the floor space ratio for a building may exceed the maximum floor space ratio allowed under that subclause by up to—

(a) 1:1—if the building is in Area A identified on the Floor Space Ratio Map and on a lot having an area of at least 1,500 square metres,

(b) 1:1—if the building is in Area B identified on the Floor Space Ratio Map and on a lot having an area of at least 2,000 square metres,

(c) 0.5:1—if the building is in Area C identified on the Floor Space Ratio Map and on a lot having an area of at least 1,200 square metres,

(d) 2:1—if the building is in Area D identified on the Floor Space Ratio Map and on a lot having an area of at least 1,000 square metres,

(e) 0.5:1—if the building is in Area F identified on the Floor Space Ratio Map and on a lot having an area of at least 600 square metres,

(f) 0.7:1—if the building is in Area G identified on the Floor Space Ratio Map and on a lot having an area of at least 600 square metres and contains one or more pedestrian arcades,

(g) 0.5:1—if the building is in Area I identified on the Floor Space Ratio Map and on a lot having an area of at least 800 square metres.

(2D) Despite subclause (2), the maximum floor space ratio for a building on land identified as “Area E” on the Floor Space Ratio Map is 5:1. However, the ratio of the gross floor area of all buildings, other than commercial premises, to the site area must not exceed 3:1.

Note—

Floor space ratios are determined cumulatively by calculating the gross floor area of all buildings on the site concerned (clause 4.5 (2)).

(2E) Despite subclause (2), the maximum floor space ratio for a building on land identified as Area H on the Floor Space Ratio Map is, if the building is used only for the purpose of seniors housing, 1.25:1.

17. Clause 4.5 of the RLEP 2011 provides as follows:

(1) Objectives The objectives of this clause are as follows—

(a) to define floor space ratio,

(b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to—

(i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii) require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—

(a) if the proposed development is to be carried out on only one lot, the area of that lot, or

(b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area

The following land must be excluded from the site area—

(a) land on which the proposed development is prohibited, whether under this Plan or any other law,

(b) community land or a public place (except as provided by subclause (7)).

(5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation.

(6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.

(7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out.

(8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings.

(9) Covenants to prevent “double dipping” When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.

(10) Covenants affect consolidated sites If—

(a) a covenant of the kind referred to in subclause (9) applies to any land (affected land), and

(b) proposed development relates to the affected land and other land that together comprise the site of the proposed development,

the maximum amount of floor area allowed on the other land by the floor space ratio fixed for the site by this Plan is reduced by the quantity of floor space area the covenant prevents being created on the affected land.

(11) Definition In this clause, public place has the same meaning as it has in the Local Government Act 1993.

18. The applicant’s written request records that the development provides a 2.05:1 FSR across the site that is generally consistent with the mapped 2:1 FSR applying to both the B4 and B3 zoned land. Hence, the proposal is described as generally consistent with the maximum development density and intensity of land use allowed by the controls applying to the entirety of the site area, and is thereby fully consistent with the desired future character of Rockdale which is a stated objective of the clause.

19. The departure from the FSR control is based on the technical definition in cl 4.5 of gross floor area – as the 77.6m of excess parking (which has no impact on the bulk/scale of the development intensity) and the enclosure of the 12m bin storage room at the ground floor proposed for amenity are calculated as FSR.

20. Accepting that there is no impact from the additional parking in terms of bulk and scale, and the enclosure of the bin area improves the amenity to the ground floor space, I accept that the departure from the FSR standard has no adverse environmental effect on the site or the enjoyment of adjoining properties. Nor will the increased FSR adversely impact the availability of infrastructure and the generation of vehicular and pedestrian traffic. In short, I accept that strict compliance with the technical application of the FSR standard would lead to a development of a density below that planned by the nominated 2:1 FSR standard, and a reduction in the availability of new commercial and residential floor space within Ramsgate.

21. For the reasons outlined in each written request, I am satisfied that the development is consistent with the relevant objectives of each development standard and that there are sufficient environmental planning grounds to support the variations proposed to the FSR and height standards in the present circumstances. Not the least reason being that the larger departure of the height standard, arising from concentrating the building on the R4 zoned area, enables the dedication for the laneway to facilitate the future laneway connection which is a positive environmental planning outcome.

22. Accordingly, as the objectives of the standard in each case are achieved despite the breach and the applicant’s written requests have adequately addressed the matters required to be demonstrated by subcl 4.6(3) and I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i), it follows that strict compliance with the development standards in cll 4.3 and cl 4.4 of the RLEP 2011 is both unreasonable and unnecessary.

23. I also accept that the development will be in the public interest because the development is also consistent with the objectives of the zone in which the development is proposed despite the breaches of cll 4.3 and 4.4 of the RLEP 2011. In that regard, the development provides a mixture of compatible uses within an accessible location that will further the objective to maximise public transport patronage as well as encouraging walking and cycling. The evidence suggests that the development has been designed to appropriately transition with the existing building forms and the R3 medium density residential zone to the rear of the site thereby minimising adverse impacts upon character and amenity of the surrounding local area. The development also preserves a future laneway connection through the R3 zoned land, which it is agreed will be dedicated to Council for a future laneway.

18. For all those reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose.

19. The concurrency of the Secretary required by cl 4.6(5) is assumed as the contravention of the FSR or height standards does not raise any matter of significance for State or regional environmental planning given the nature of the development; and there is no public benefit in maintaining the standards on the facts of this case.

20. Having decided to uphold the applicant’s written requests to vary the FSR and height standards, and the parties’ decision is one 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.

21. Accordingly, the Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 2 of the General Conditions of Consent.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $18,000.00 within 21 days of the date of these orders.

3. The Applicant’s written request pursuant to clause 4.6 of Rockdale Local Environmental Plan 2011 seeking to justify the breach of the maximum height development standard pursuant to clause 4.3 of Rockdale Local Environmental Plan 2011 prepared by Think Planners Pty Ltd dated 22 October 2020 is upheld.

4. The Applicant’s written request pursuant to clause 4.6 of Rockdale Local Environmental Plan 2011 seeking to justify the breach of the maximum floor space ratio development standard pursuant to clause 4.4 of Rockdale Local Environmental Plan 2011 prepared by Think Planners Pty Ltd dated 22 October 2020 is upheld.

5. The appeal is upheld.

6. Development Application No. DA-2019/398, lodged on 4 November 2019, for the demolition of existing lots and construction of a 5-storey mixed used development comprising of 45 units, 3 commercial tenancies and a two-level basement with carparking spaces at 262-270 Rocky Point Road, Ramsgate is approved subject to conditions annexed hereto and marked “A”.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (351529, pdf)

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Amendments

15 January 2021 - Correction to error in judgment - inclusion of extract of clause 4.4.

Decision last updated: 15 January 2021