Hansimikali v Bayside Council

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…