Happy 2 Pty Ltd v Bayside Council

[2020] NSWLEC 1000

Land and Environment Court

New South Wales

Medium Neutral Citation:	Happy 2 Pty Ltd v Bayside Council [2020] NSWLEC 1000
Hearing dates:	Conciliation conference on 26 November 2019
Date of orders:	07 January 2020
Decision date:	07 January 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	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 $20,000 by 1 February 2020 (the parties note that the agreed figure also satisfies the costs order of 31 October 2019). (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. 2017/1243 for the demolition of existing structures and erection of shop top housing with 36 residential units, 5 commercial/retail spaces and basement car parking with 97 car parking spaces at 1637-1647 Botany Road, Botany is approved subject to the conditions in Annexure “B”.
Catchwords:	DEVELOPMENT APPEAL – residential apartment development – Apartment Design Guide – SEPP 65 – mixed use development – conciliation conference – agreement between the parties - orders
Legislation Cited:	Airports (Protection of Airspace) Regulations 1996 (Cth) Airports Act 1996 (Cth) Architects Act 2003 Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Happy 2 Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Counsel: G Green (Solicitor) (Applicant) J Cole (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2018/207382
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) relating to the deemed refusal of Development Application No. 2017/1243 for the redevelopment of the site at 1637-1647 Botany Road, Botany.

2. The proposal involves the demolition of La Perouse House and all the existing structures on the site for the construction of a large shop-top housing comprising two (2) commercial units at the ground floor and 48 residential units at the upper levels with basement car parking and strata subdivision.

3. The site is legally described as Lot 1 in DP 1059219 (being 1637 Botany Road), Lot 1 in DP 743217 (being 1636 Botany Road) and Lot 1 in DP 770617 (being 1647 Botany Road). The site has frontages to Botany Road and Rancom Street and a total area of 1,816m².

4. On 31 October 2019, the Applicant was granted leave to amend the development application and to rely on amended plans and documents which reduced the number of apartments to 36 residential units, amended the number of car parking spaces, increased ground floor retail area and significantly amended the building separation within the site.

5. 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 26 November 2019. The proceedings commenced onsite, after which the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared.

6. On 4 December 2019, a signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

8. 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. There are jurisdictional prerequisites contained in the relevant provisions of the following:

• State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

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

• Botany Bay Local Environmental Plan 2013

9. The parties explained to me during the conference as to how the jurisdictional requirements have been satisfied in order to allow the Court to make orders that give effect to the parties’ agreement. I am satisfied that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The land to which the development application relates is within the B1 Neighbourhood Centre zone under the provisions of the Botany Bay Local Environmental Plan 2013 (BBLEP). Development for the purposes of shops, and shop-top housing is permitted with consent, and I am satisfied that the proposal is consistent with the objectives of the zone which are in the following terms:

• To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

•  To ensure that development does not adversely impact on residential amenity and is compatible with the existing streetscape.

2. On the basis of the Preliminary Site Investigation undertaken by eiAustralia dated 14 December 2017, the Hazardous Materials Survey prepared by eiAustralia dated 13 December 2017, and the Detailed Site Investigation prepared by eiAustralia dated 23 March 2018, I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out, pursuant to cl 7(1) of SEPP 55, and as provided for in the conditions of consent at Annexure ‘B’.

3. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I rely on the statement completed by the architect Rohan Dickson dated 13 December 2019 to this effect.

4. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

5. As the site within the vicinity of Sydney Airport, s 183 of the Airports Act 1996 (Cth) and reg 7 of the Airports (Protection of Airspace) Regulations 1996 (Cth) requires the Applicant to seek approval of the Secretary of the Department of Infrastructure and Regional Development for approval of a controlled activity. I am satisfied on the basis of condition 8 that this requirement has, or will, be met.

6. Clause 4.3 of the BBLEP provides for a maximum building height of 14m. The parties are agreed that the building exceeds the height control, and the Applicant relies on a written request prepared by Planning Ingenuity dated 11 November 2019 pursuant to cl 4.6 of the BBLEP to justify the contravention of the height control. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the BBLEP for the following reasons:

• The exceedance varies, but is measured at a maximum of 2.18m when measured at two lift over-runs serving the Rancom Street form.

• Compliance with the development standard is unreasonable or unnecessary as the objectives of the height control at cl 4.3 of the BBLEP are achieved notwithstanding the non-compliance with the standard. These objectives are set out as follows:

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

(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.

• I accept that the distribution of building mass, which results in a non-compliance at the Rancom Street frontage, serves to reduce the bulk and scale of the proposed development when viewed from Botany Road so as to ensure a coordinated and cohesive streetscape that is consistent with the desired future character of the area.

• I also accept that the taller form to the Rancom Street frontage adjoins an area in transition, and is in close proximity to taller buildings of around 5-7 storeys in height, in the adjacent R3 zone, and so can be said to be appropriately located. For these reasons, the arrangement of bulk and scale does not adversely affect the streetscape as would a complying form.

• Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the height control as the objectives of the height control and B1 zone are achieved through the deliberate placement of greater bulk and scale away from the predominantly 2 storey form of Botany Road, and adjacent to the taller tower forms evident in the adjoining R3 zone. The greater setback of taller built form from Botany Road permits the retention of the historic façade of the ‘La Perouse House’ in a setting that is compatible with the existing streetscape.

• On the basis of the above, I am satisfied that the proposed development is consistent with the objectives of the development standard, and the objectives of the zone, set out at [9(1)], and so is in the public interest.

10. Having formed an opinion of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application.

12. 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 $20,000 by 1 February 2020 (the parties note that the agreed figure also satisfies the costs order of 31 October 2019).

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. 2017/1243 for the demolition of existing structures and erection of shop top housing with 36 residential units, 5 commercial/retail spaces and basement car parking with 97 car parking spaces at 1637-1647 Botany Road, Botany is approved subject to the conditions in Annexure “B”.

………………………

Tim Horton

Commissioner of the Court

Annexure A (10.2 MB, pdf)

Annexure B (311 KB, pdf)

**********

Decision last updated: 08 January 2020