Fyve Developments Pty Ltd v Bayside Council

[2024] NSWLEC 1209

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fyve Developments Pty Ltd v Bayside Council [2024] NSWLEC 1209

Hearing dates:

Conciliation conference held 15 December 2023, 2 February, 19 February, 5 March, 18 March, 25 March and 2 April 2024

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)   Leave is granted to the Applicant to amend Development Application DA-2022/416 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

(3)   The Applicant’s written request, pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BLEP, is upheld.

(4)   The appeal is upheld.

(5)   Consent is granted to Development Application DA-2022/416 (as amended) for the demolition of existing structures and construction of an eight-storey residential apartment building, comprising of 50 units above two levels of basement parking, landscaping and associated works, at 5-11 Flora Street, Arncliffe, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.6, 5.10, 6.1, 6.2, 6.3, 6.7, 6.10

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38

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

State Environmental Planning Policy (Housing) 2021, Ch 4, Sch 9, ss 145, 147, Ch 4, Sch 9,

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

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, ss 2.48, 2.120, Ch 2

Texts Cited:

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

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Fyve Developments Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/188636

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Fyve Developments Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-2022/416 (the DA) by Bayside Council (the Respondent). At the time of its lodgement, the DA sought consent for demolition of existing structures and the construction of an eight-storey residential apartment building comprising 54 residential units over two basement levels, strata subdivision, landscaping and associated works at 5-11 Flora Street, Arncliffe (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 December 2023, 2 February, 19 February, 5 March, 18 March, 25 March and 2 April 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of building height exceedance, floor space ratio (FSR) exceedance, failure to exhibit design excellence, inconsistency with the Apartment Design Guide (ADG), inadequate carparking and vehicular access, inadequate waste management facilities, inadequate stormwater management, poor landscape and public domain design, inadequate deep soil and a proposed through site link inconsistent with the relevant development controls, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the streetscape, to provide adequate deep soil and a pedestrian through site link of acceptable design quality. Changes have been made to resolve vehicle access and circulation, and design changes made to improve internal residential amenity. These agreed amendments also have the effect of reducing the total number of residential units from 54 to 50.

6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was lodged with the Respondent on 11 January 2023 and publicly notified from 18 January to 20 February 2023. One submission was received by the Respondent raising concerns with traffic and parking congestion. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

10. The parties agree, and I am satisfied, that the Bayside Local Environmental Plan 2021 (BLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as a residential apartment building - is permissible with consent.

11. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the BLEP, the amended DA is consistent with the R4 High Density Residential zone objectives, which include to provide for the housing needs of the community within a high density residential environment, to provide a variety of housing types within a high density residential environment, to ensure land uses are carried out in a context and setting to minimise impact on the character and amenity of the area and to enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

12. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the BLEP, demolition of existing structures on the site is permissible with consent.

13. The parties agree, and I am satisfied, that all principal development standards of the BLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.

14. In such an instance, cl 4.6(3) of the BLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

15. Clause 4.6(4) of the BLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

16. Additionally, cl 4.6(4)(b) of the BLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

17. As required by cl 4.6 of the BLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by GAT and Associates and dated 2 February 2024.

18. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA proposes a maximum building height of 27.155m, exceeding the development standard of 26.5m by 0.655m, representing a variation of approximately 2.5%.

2. The amended DA is agreed to be of a form and scale - at eight storeys - that is compatible with the existing streetscape and desired future character of the locality.

3. The area of exceedance to the maximum building height standard generally arises as a result of providing appropriate minimum floor to floor heights necessary to achieve consistency with the National Construction Code and is limited to a lift over run and screened rooftop plant.

4. The height exceedance is generally located toward the centre of the site and is set back from the site boundaries.

5. The DA has been amended during the conciliation conference to resolve the Respondent’s contentions, such that the non-compliant areas are unable to be perceived in the general presentation of the building to the street and configured in a manner that is now more consistent with the scale of development appropriate to the locality.

6. The proposed height exceedance does not give rise to additional adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

7. The objectives of the BLEP Zone R4 High Density Residential land use zone include to provide for the housing needs of the community within a high density residential environment, to provide a variety of housing types within a high density residential environment, to ensure land uses are carried out in a context and setting to minimise impact on the character and amenity of the area and to enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling. I am satisfied the amended DA meets these objectives.

8. The objectives of cl 4.3 of the BLEP include to ensure that building height is consistent with the desired future character of an area, to minimise visual impact of new development, disruption of views, loss of privacy and loss of solar access to existing development, and to nominate heights that will provide an appropriate transition in built form and land use intensity. I am satisfied the amended DA meets these objectives.

19. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

20. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the BLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located within a Heritage Conservation Area (HCA) or in the vicinity of any listed heritage item of HCA. Accordingly, I am satisfied the amended DA creates no impacts upon any heritage item or HCA.

21. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the BLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area and is also situated within 500m of land identified as being Class 3.

22. The Applicant has provided a Dewatering Management Plan prepared by EI Australia and dated 23 March 2023. This plan concludes that the site lies within an area where acid sulfate soils are not known or expected to occur and therefore, the potential for acid sulfate soils to be present on site is considered to be low and further assessment unnecessary.

23. Accordingly, clause 6.1(3) of the BLEP is not triggered and an acid sulfate soils management plan is not required. In any event, agreed conditions of consent include for an acid sulfate soil management plan to be prepared to address the potential dewatering impact on neighbouring land.

24. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the BLEP - Earthworks. The Applicant has provided a Preliminary Site Investigation and a Preliminary Geotechnical Assessment, both prepared by EI Australia and dated 8 August 2022. I am satisfied this report addresses the matters set out at cl 6.2(3), which have been given appropriate consideration. Agreed conditions of consent reflecting these report recommendations are imposed.

25. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the BLEP - Stormwater and water sensitive urban design - the amended DA is supported by stormwater drawings which appropriately address the matters set out at cl 6.3(2) of the BLEP.

26. The parties agree, and I am satisfied, that pursuant to cl 6.7 of the BLEP - Airspace operations - the amended DA has been referred to Sydney Airport Corporation Limited (SACL). On 23 January 2023, SACL granted its approval to the proposed development and requirements raised by SACL are reflected in the agreed conditions of consent.

27. The parties agree, and I am satisfied, that pursuant to cl 6.10 of the BLEP - Design excellence - the amended DA must exhibit design excellence. In forming a view of satisfaction, the consent authority must have regard to those matters set out at cl 6.10(4). Additionally, and pursuant to cl 6.10(5)(a) of the BLEP, the Bayside Design Review Panel reviewed the DA on 2 March 2023 and its recommendations have been taken into account. I am satisfied the amended DA exhibits design excellence.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

29. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

30. Pursuant to s 145 of SEPP Housing, the Respondent referred the DA to the Bayside Design Review Panel on 2 March 2023. Advice received from the design review panel has been considered by the parties and has informed design amendments made to resolve the Respondent’s contentions in this matter.

31. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, Benson McCormack Architecture (and its nominated architect Mr Glenn McCormack - NSW registered architect 7536) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the ADG have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

32. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument.

33. Pursuant to Ch 2 of SEPP Biodiversity and Conservation, the amended DA seeks consent for the removal of vegetation. Given the amended DA receives consent under the EPA Act, a permit for removal of vegetation is not required. In any event, the amended DA includes deep soil sufficient to accommodate large canopy trees and planting. Conditions of consent require the provision of adequate replacement planting. Accordingly, I am satisfied the amended DA conforms with the relevant provisions of Ch 2 of SEPP Biodiversity and Conservation.

34. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

35. Pursuant to s 2.48 of SEPP Infrastructure, the DA was referred to Ausgrid, whose response raised no objections. Agreed conditions of consent, reflecting Ausgrid’s requirements, are imposed.

36. Further, and pursuant to s 2.120 of SEPP Infrastructure, the site is in proximity to a road with traffic volume greater than 20,000 vehicles per day. The Applicant has provided an Acoustic Report addressing the requirements of s 2.120. Accordingly, I am satisfied the amended DA conforms with the relevant provisions of Ch 2 of SEPP Infrastructure.

37. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to s 27 of the EPA Reg, a BASIX certificate No 1354627M_03, dated 16 March 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

38. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

39. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 28 March 2024.

Orders

40. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-2022/416 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

3. The Applicant’s written request, pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA-2022/416 (as amended) for the demolition of existing structures and construction of an eight-storey residential apartment building, comprising of 50 units above two levels of basement parking, landscaping and associated works, at 5-11 Flora Street, Arncliffe, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Annexure A

Architectural Plans

Decision last updated: 23 April 2024