Hansimikali v Bayside Council

[2019] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hansimikali v Bayside Council [2019] NSWLEC 1353
Hearing dates:	23-24 July 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development Application No. 2017/1161 for the demolition of existing structures and the construction of a four and five storey mixed use development at 1027-1043 Botany Road, Mascot, is approved, subject to the conditions of consent at Annexure A. (3)   The exhibits, other than Exhibits 5, A, B and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION – mixed-use development – exceedance of the height of buildings development standard – whether the proposal is consistent with the desired future character of the locality – amenity of the adjoining low density residential dwellings
Legislation Cited:	Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Apartment Design Guide Botany Bay Development Control Plan 2013
Category:	Principal judgment
Parties:	Manuel Hansimikali (Applicant) Bayside Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Pikes & Verekers Lawyers (Applicant) J Cole, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/107141
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2017/1161 for the demolition of existing structures and the construction of a four and five storey mixed-use development (the proposal) at 1027-1043 Botany Road, Mascot (the site) by Bayside Council (the Council).

2. The appeal was subject to conciliation on 16 November 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 27 November 2018, pursuant to s 34(4) of the LEC Act.

Issues

3. The Council’s contentions can be summarised as follows:

• The form, scale and location of the proposal are incompatible with the desired future character of the locality because the proposal does not comply with the height of buildings development standard of 14m;

• The site is on a boundary with the R2 Low Density Residential zone and should allow for a transition to the smaller scale of the R2 zone which is not achieved by the height of the proposal;

• The proposal exceeds the maximum building height applicable to the site and the written request to vary the development standard is not well founded; and

• The uppermost level fails to provide adequate visual privacy to the properties to the rear of the site.

4. The Council’s remaining contentions were not pressed following the amendment of the proposal and the agreement of the experts that these contentions were successfully addressed by the amended proposal.

The change to the proposal in Exhibit E is minor within the meaning of s 8.15(3) of the EPA Act

5. Leave was granted by the Court on 15 May 2019 for the applicant to amend the application by relying on amended architectural drawings.

6. Leave was granted on the first day of the hearing for the applicant to amend the application by relying on amended architectural drawings which reflected changes to the proposal agreed upon by the planning and urban design experts during joint conferencing (Ex D).

7. The applicant sought to amend the application during the afternoon of the first day of the hearing to rely on further amended drawings that reduced the southern extent of the uppermost level by 800mm (Ex E). Following a brief adjournment for the Council’s experts to consider the changes to the proposal, the Council submitted that there was no objection to leave being granted to the applicant to amend the application to rely on the further amended proposal, subject to the parties’ ongoing discussion regarding the potential for the applicant to pay the Council those costs that were thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act. The applicant submitted that the change to the proposal in Exhibit E is minor within the meaning of the s 8.15(3) of the EPA Act.

8. I accept the applicant’s submission that the change to the proposal in Exhibit E is minor within the meaning of s 8.15(3) of the EPA Act. The proposal was amended in Exhibit E to reduce southern extent of the uppermost level by 800mm, which reduced the total floor area on the uppermost level by 5sqm. There was no change to the spatial layout of the fifth floor because the amendment reduced the width of the living area of one apartment. The purpose of the change was to reduce the area of overshadowing caused by the south-eastern corner of the roof of the uppermost level late in the afternoon on the winter solstice. I have considered the principles summarised by Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 at [42] in deciding whether the amendment to the proposal in Exhibit E is minor and I am satisfied that this one small amendment to the proposal is minor. The reassessment of the application required by the Council’s experts would have taken a matter of seconds for them to look at the Fourth Floor Plan and the resulting changes to the winter solstice afternoon overshadowing plans.

9. A complete set of amended architectural plans was tendered as Exhibit F.

Amended clause 4.6 written request to exceed the height of buildings development standard admitted into evidence

10. The Council opposed leave being granted for the applicant to rely on an amended clause 4.6 written request to exceed the height of buildings development standard on the basis that it was prejudicial to the Council’s case because the amended written request was provided to the Council on the first day of the hearing.

11. The planning and urban design experts’ joint report (Ex 3) was filed the day before the hearing. Amended drawings attached to the joint report reflected the experts’ agreement in relation to the majority of contentions raised by the Council (Ex D). Leave was granted by the Court on the first day of the hearing for the amended written request to be admitted into evidence as Exhibit C, because the prejudice caused to the Council by the late provision of the document was cured by a short adjournment on the first day of the hearing to allow the Council’s experts to consider the amendments made to the written request.

12. I accept the applicant’s submission that the amended written request was prepared in response to the agreed amendments made to the proposal by the planning and urban design experts and that it was necessary to amend the written request following the amendment of the proposal. As the provision of the written request is a jurisdictional prerequisite that must be satisfied before the Court has power to exercise the function under s 4.16 of the EPA Act to grant consent to the development application, pursuant to cl 4.6(2) of the Botany Bay Local Environmental Plan 2013 (LEP 2013), it was appropriate to admit the amended document so that the written request in evidence is consistent with the latest iteration of plans in evidence.

The site and its context

13. The site is on the eastern side of Botany Road, on the block bounded by Rawson Street to north and Tunbridge Street to the south. The site is opposite the south-eastern corner of Mascot Memorial Park.

14. The site has an area of 1,976sqm and is irregular in shape. The site is generally flat.

15. The site is located in close proximity to Sydney Kingsford Smith Airport and is therefore affected by the 20-25 Australian Noise Exposure Forecast (ANEF) Contour.

16. The adjoining property to the north of the site contains a two storey dwelling and the adjoining property to the south contains a single storey dwelling. The B2 Local Centre zone extends along both sides of Botany Road, excluding Mascot Memorial Park.

17. The properties to the east of the site are detached and attached dwellings on small allotments fronting Walker Avenue and are located within the R2 Low Density Residential zone. Numbers 20, 18, 16 Walker Avenue, and attached dwellings 14 and 12 Walker Avenue, share a rear boundary with the site.

The proposal

18. The proposal is to demolish all existing structures on the site and to construct a four and five storey mixed use development, consisting of two levels of basement parking for 83 cars accessed from Rawson Lane, five ground floor retail tenancies accessed from Botany Road and 38 residential apartments. Communal open space is located at ground level at the rear of the site.

19. The mass of the proposal is for a four storey built form which includes 3m setbacks for the upper two levels on the western side from Botany Road. The proposal has a partial southern side setback of 2.21m to 2.667m on the ground floor and steps back on the southern side at the upper two levels. The proposal includes a fifth level, the Fourth Floor, which is setback from the façade on all sides and occupies a footprint of 219.69sqm, which represents approximately 28% of the floor area on the Third Floor which has an area of 778.89sqm. The Fourth Floor contains two penthouse style apartments with lift and stair access, terraces and planter boxes.

20. The four storey component of the proposal has a rear setback of between 9m and 12.321m for the majority of the rear boundary.

Planning framework

21. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) is a relevant applies to the proposal at cl 4(1)(a)(i). The Apartment Design Guide (ADG) is a relevant consideration as it applies to the proposal and prevails over any inconsistent Development Control Plan control. The Council submits that Design Quality Principles 1 Context and Neighbourhood Character and 2 Built Form and Scale are relevant to the assessment of the proposal.

22. The site is zoned B2 Local Centre pursuant to LEP 2013 and the proposal is permissible with consent. Both shop top housing and residential flat buildings are nominate permissible uses in the B2 zone. The objectives of the B2 zone, to which regard must be had, are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

23. The height of buildings development standard for the site is 14m (Height of Buildings Map – Sheet HOB_001 of LEP 2013). The proposal exceeds the height of buildings development standard. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2013, are:

(a) to ensure that the built form of Botany Bay develops in a coordinated and cohesive manner,

(b) to ensure that taller buildings are appropriately located,

(c) to ensure that building height is consistent with the desired future character of an area,

(d) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(e) to ensure that buildings do not adversely affect the streetscape, skyline or landscape when viewed from adjoining roads and other public places such as parks, and community facilities.

24. The floor space ratio (FSR) development standard for the site is 2:1 (Floor Space Ratio Map – Sheet FSR_001 of LEP 2013). The proposal (Ex E) has a FSR of 1.91:1.

25. There are a number of local heritage items within the vicinity of the site, including Mascot Memorial Park opposite the site.

26. Botany Bay Development Control Plan 2013 (DCP 2013) is a relevant consideration.

27. The objectives for the height of buildings in DCP 2013 at 4C.2.3 are to ensure that the height and scale of development is consistent with the streetscape and complements the scale, massing and design of adjoining development and to ensure that any visual impact, loss of privacy, loss of views or overshadowing on neighbouring properties are within acceptable limits. Further objectives and controls for the height of buildings in business centres are set out at 5.3.1.2 of DCP 2013 and include the objective of ensuring that the scale of new buildings is consistent with the desired future character of each business centre.

28. The site is located within the Rosebery Neighbourhood Centre, described at 5.2.2.6 of DCP 2013. The desired future character statement for the Rosebery Neighbourhood Centre is set out in this section with objectives and controls, illustrated in Fig 22 reproduced below. The maximum height of buildings is 14m with a maximum of four storeys permitted, at control 7, and buildings must have a maximum height of two storeys along the street frontage with a continuous parapet line consistent with existing development. The two top storeys must be setback a minimum of 3m from Botany Road. Landscaping must be provided along the rear boundary where the site adjoins a residential property, at control 8.

Public submissions

29. Three resident objectors provided evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• The proposal is a large development next to single storey detached cottages to the south and the proposal, built adjacent to the southern boundary, will significantly compromise the amenity of the neighbouring dwellings.

• The proposal will create a precedent for further developments along Botany Road of a similar scale.

• The proposal has no setback to Botany Road.

• The proposal will significantly increase the traffic using Rawson Lane.

• The excavation required for the basement in sandy soil will potentially compromise the structural integrity of structures on adjoining properties.

Expert evidence

30. The applicant relied on the expert evidence of Mr Jeff Mead (planning) and Mr Rohan Dickson (urban design). The Council relied on the expert evidence of Ms Angela Lazaridis (planning) and Ms Gabrielle Morrish (urban design). The joint report of the four experts was tendered and marked Exhibit 3.

31. Following the agreed amendment of the proposal (Ex D), the dispute between the experts was narrowed to a single point of disagreement over the form of the uppermost level. The experts agreed that a fifth level to the development is acceptable (Ex 3, par 7). The Council’s experts’ evidence is that the proposal would be acceptable and the written request to vary the height of buildings development standard well founded if the footprint of the fifth level was reduced at each end by approximately 6m; the overall height reduced by 300mm by reducing the floor to ceiling height to 2.4m; the cores for vertical circulation on the fifth level were deleted by having a “pop-up” uppermost level containing bedrooms to apartments on the lower level; and the external terraces and balustrades on the fifth level were deleted.

32. The applicant’s experts justified the proportions of the fifth level as a redistribution of the gross floor area on the site to maximise the rear setback from the R2 zone and to provide a side setback to the existing dwelling on the adjoining property to the south of the site. The applicant’s experts are of the view that the fifth level will not result in any adverse impacts on surrounding development when compared to a four storey building envelope with a 9m rear setback and that the visual impacts of the fifth level when viewed from the public domain are negligible.

33. Ms Morrish noted that a four storey building envelope with a 9m rear setback would exceed the FSR development standard for the site. In her view, a fifth level should not be visible from the public domain or detract or challenge the four storey vision for the Rosebery Centre (Ex 3, pars 3.37, 3.42).

34. Mr Mead noted that the small area of additional overshadowing during the late afternoon of the winter solstice beyond the overshadowing of a four storey block with a 9m rear setback falls on the roofs of residential dwellings on the western side of Walker Street and does not cause further overshadowing of their backyards.

35. Mr Mead cited three examples of recent mixed use developments in the locality at 984 Botany Road, 694-700 Botany Road and 904 Botany Road which have a partial fifth level over a four storey building form. The Council submits that the form of these developments was a response to the unique opportunities and constraints of each site.

Contravention of height of buildings development standard

36. The proposal has a maximum height of 16.4m to the top of the building and 17.2m to the top of the lift overruns. The height of buildings development standard for the site is 14m.

37. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex C).

38. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13] (Initial Action)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

39. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2013 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

40. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

41. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

42. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

43. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

44. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the proposal achieves the objectives of the height of buildings development standard notwithstanding the numerical non-compliance, as follows:

• The proposal reflects the increased development potential embodied in the zoning and development standards of LEP 2013 and has been designed to sensitively respond to the interface between the B2 Local Centre zone and the adjoining R2 Low Density Residential zone with a generous rear setback. The proposal redistributes floor area to a reduced upper level within a building envelope designed to minimise visual, privacy and solar impacts on neighbouring development.

• The proposal is consistent with the desired future character of the area because the proposal is for a four storey built form with setback to the upper two levels fronting Botany Road. The fifth level is not visually dominant because it is clad in different materials and finishes as it has generous setbacks from each façade of the principal four storey form of the proposal.

• The fifth level is only partially visible from the public domain and as the appearance of an additional component sitting above the main four storey bulk of the building. The fifth level will have little impact on skyline views from nearby vantage points because it is setback and is recessive.

45. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

46. The applicant justifies the exceedance of the height of buildings development standard by the fifth level on the basis that the proposal complies with the FSR development standard and the building envelope effectively redistributes a small portion the gross floor area to the fifth level in order to increase the rear setback of the proposal because the site has an interface with the R2 Low Density Residential zone to the rear. This redistribution of floor area has been carefully positioned so that the resulting building envelope minimising the overshadowing of the residential dwellings and their backyards in the R2 zone to the east.

47. I accept the Council’s submission that the interface between the B2 Local Centre zone and the R2 Low Density Residential zone is not unique to this site, but is instead a common feature of the B2 zone that forms a spine along both sides of Botany Road, to the south of Gardeners Road, as evidenced by the Land Zoning Map in LEP 2013. This is a feature of the zoning pattern arising from the strategic planning exercise that has informed LEP 2013. Depending on the individual configuration and circumstances of each site, it does potentially present a significant conflict between the intense development envisaged in the narrow spine of the B2 zone along Botany Road and the amenity enjoyed by the residents of the adjoining low density residential zone. There is nothing in cl 4.6(3)(b) in LEP 2013 that requires the environmental planning ground/s relied upon by an applicant to be unique to the site. That this interface between the considerable difference in the scale of development in the B2 zone and the R2 zone is not unique to the site is not a reason that it cannot be held to be a sufficient environmental planning ground to justify contravening the height of buildings development standard.

48. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to maximising the separation between the rear façade of the proposal and the detached residential dwellings and their backyards, immediately to the east of the site. I am satisfied that justifying the partial fifth level as a redistribution of the gross floor area permitted on the site in order to maximise the separation between the apartments in the proposal and the detached dwellings and their backyards adjacent can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

49. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]).

50. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons given by the applicant in the written request.

Consideration

51. The determination of the narrow dispute between the parties is focused on the contravention of the height of buildings development standard and broadly encompasses the merit issues raised by the Council regarding the desired future character of the Rosebery precinct, the privacy impacts resulting from the eastern terraces of the fifth level and the visual impact of the fifth level when viewed from the public domain.

52. I am satisfied that the proposal achieves a successful interface between the B2 and R2 zones. A transition in scale between zones should be achieved by the zoning and development standards in the LEP determined by the strategic planning exercise that informed the LEP and should not require an onerous transition in scale on an individual site that borders a different zone that significantly diminishes the development potential of that site. A proposal is no less entitled to rely on the terms of cl 4.6 to provide an appropriate degree of flexibility in applying a development standard simply because the site is located at the edge of a zone. This does not obviate the requirement for an assessment of the development in relation to its context and consequent amenity impacts once the hurdles of cl 4.6 are met.

53. I prefer Mr Mead’s evidence that the significant distance between the eastern terraces on the fifth level and the backyards of the adjoining residential properties ensures that the presence of the eastern terraces on the fifth level does not pose an unreasonable privacy impact on the adjoining low density residential properties.

54. I prefer Mr Dickson’s evidence that the fifth floor is appropriately recessive and deferential to the form of the four storey component of the proposal when viewed from the public domain so that it will not contravene the vision articulated by the desired future character statement for the Rosebery Neighbourhood Centre.

55. I accept the applicant’s experts’ opinion that the amended building envelope for the fifth floor has minimised the amenity impacts on adjoining development. The overshadowing specifically caused by the south-eastern corner of the fifth level late in the afternoon of the winter solstice falls on the roofs of residential dwellings in Walker Avenue and does not further reduce the amenity of the private open space of these dwellings when compared to a hypothetical four storey building envelope on the site.

56. The interface of the B2 zone and the potential building envelope arising from the development standards in the B2 zone, with the R2 zone, which has in this location small properties with backyards abutting the site, guarantees inevitable amenity impacts on the residential amenity of the low density residential dwellings on the western side of Walker Avenue. I am satisfied that this proposal has managed to minimise those amenity impacts.

Conclusion

57. In determining this appeal, I have given weight to the following positive features of the proposal:

• The FSR complies with the development standard and results in a building footprint with a generous rear setback containing landscaping and communal open space;

• The separation between the eastern façade of the proposal and the low density residential dwellings to the east is generous;

• The spatial planning of the proposal predominately locates bedrooms without balconies on the eastern side of the proposal on the First, Second and Third Floors which will preserve the visual and acoustic privacy to the maximum extent possible in the backyards of adjoining low density residential dwellings to the east;

• The fifth level is significantly setback from the façades of the development on the lower levels and the small eastern terraces surrounded by planting will not result in privacy impacts for the low density residential dwellings to the east; and

• The proposal is broadly consistent with the building forms envisaged for the B2 zone along Botany Road and the extant development recently constructed under this planning regime.

Orders

58. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2017/1161 for the demolition of existing structures and the construction of a four and five storey mixed use development at 1027-1043 Botany Road, Mascot, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 5, A, B and F, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (399 KB, pdf)

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Decision last updated: 01 August 2019