Ezra 1 Pty Ltd v Bayside Council

[2020] NSWLEC 1065

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ezra 1 Pty Ltd v Bayside Council [2020] NSWLEC 1065
Hearing dates:	Conciliation conference 22-23 January 2020
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans copies of which are marked ‘Annexure A’ for the purpose of the development application. (2) The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $60,000 within 28 days of the date of this agreement. (3) The Applicant’s written request under clause 4.6 of the Botany Bay Local Environmental Plan 2013 for contravention of the maximum height development standard imposed by clause 4.3 of the Botany Bay Local Environmental Plan 2013, is upheld. (4)   The appeal is upheld. (5)   Development application no. 10.2018.1138.1 for the demolition of existing structures and construction of mixed use development consisting of 31 residential units and 4 commercial spaces at 702-710 Botany Road and 2 Miles Street, Mascot is approved subject to the conditions in ‘Annexure B’.
Catchwords:	DEVELOPMENT APPLICATION – Mixed use development – streetscape – character – contamination – parking – traffic – amenity – height – conciliation conference – agreement between the parties – orders
Legislation Cited:	Botany Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Ezra Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Counsel: W Calokerinos (Applicant) M Staunton (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/296890
Publication restriction:	Nil

Judgment

1. COMMISSIONER: Development Application No. 2018/1138 was lodged with Bayside Council on 26 July 2018 seeking consent for demolition of existing structures and construction of a part three and part five storey mixed use development over podium and part basement car park. The development was to comprise four retail tenancies to Botany Road and 35 residential units with a one level basement car park with access via Miles Street and associated landscaping at 702-710 Botany Road and 2 Miles Street, Mascot.

2. Ezra is appealing the deemed refusal of the application pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. At the commencement of the hearing, and as the result of joint conferencing, the applicant sought leave to have the matter converted to a conciliation conference on the basis that, subject to amended plans, it believed the matter was capable of resolution through an agreement pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). Pain J granted that leave.

4. During the conciliation conference the parties addressed those contentions that remained and the applicant prepared further amended plans. Those plans and a series of supporting documents and reports now address all of the contentions in the case.

5. The number of units within the development has reduced to 31 with 4 commercial/retail tenancies retained along the Botany Road frontage.

6. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

7. 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 have formed this state of satisfaction for the following reasons:

1. The proposed use is permissible in the R3 Medium Density Residential and B2 Local Centre zones of the Botany Local Environmental Plan 2013 (LEP) pursuant to clause 5.3 of the LEP.

2. The Applicant has filed a cl 4.6 variation request to vary the development standards at cl 4.3 Height of Buildings under the LEP. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of LEP 2013, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of LEP 2013).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2013).

3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2013 are met.

4. For the reasons outlined in the written requests, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R3 General Residential zone and the B2 Local Centre zone and the Height of Buildings development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2013 are met.

5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2013 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

3. The necessary documentation required under the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development has been provided and the council is satisfied that the design of the development meets the provisions of that policy and the Design excellence provisions of clause 6.16 of the LEP.

4. Necessary approvals have been obtained in regard to aircraft noise.

5. The development satisfies the requirements of clause 6.15 of the LEP in that it provides an active street frontage to Botany Road.

6. I am satisfied that the site can be rendered suitable for the proposed development having regard to the provisions of State Environmental Planning Policy No 55 – Remediation of Land.

7. The applicant has demonstrated that the design of the development can address the acoustic requirements relating to traffic noise as required under the provisions of State Environmental Planning Policy (Infrastructure) 2007.

8. 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.

9. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

10. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans copies of which are marked ‘Annexure A’ for the purpose of the development application.

2. The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $60,000 within 28 days of the date of this agreement.

3. The Applicant’s written request under clause 4.6 of the Botany Bay Local Environmental Plan 2013 for contravention of the maximum height development standard imposed by clause 4.3 of the Botany Bay Local Environmental Plan 2013, is upheld.

4. The appeal is upheld.

5. Development application no. 10.2018.1138.1 for the demolition of existing structures and construction of mixed use development consisting of 31 residential units and 4 commercial spaces at 702-710 Botany Road and 2 Miles Street, Mascot is approved subject to the conditions in ‘Annexure B’.

…………………………

Sue Morris

Acting Commissioner of the Court

Annexure A Cover Sheet (11.3 KB)

Annexure A (Plans) Part 1 (6.67 MB)

Annexure A (Plans) Part 2 (14.1 MB)

Annexure A (Plans) Part 3 (9.73 MB)

Annexure A (Plans) Part 4 (7.52 MB)

Annexure B (543 KB)

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Amendments

15 May 2025 - Changed Environmental Planning and Assessment 1979 s 8.8 to s 8.7 in body para [2]

Decision last updated: 15 May 2025