Hone Constructions Pty Ltd v Bayside Council

[2023] NSWLEC 1304

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hone Constructions Pty Ltd v Bayside Council [2023] NSWLEC 1304

Hearing dates:

11-12 May 2023, Conciliation conference on 12 May 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being granted leave to file the Amended Development Application within 90 days of the date of these orders, which costs are agreed in the amount of $25,000 which includes the costs ordered by the Court on the motion filed on 9 November 2022 together with the costs the subject of this order.

(2) The written request pursuant to clause 4.6 of Bayside Local Environmental Plan 2021 (BLEP) seeking a variation of clause 4.3 - Height of Buildings of BLEP prepared by GAT & Associates dated May 2023 is upheld.

(3) The appeal is upheld.

(4) Development Consent is granted to Development Application No. 2021/463 for the demolition of existing structures, removal of trees and construction of a 5 storey building mixed use development comprising of a commercial tenancy to be used for business premises or retail premises and 23 residential units, 2 basement levels and associated landscaping at 30 & 34 High Street, Mascot legally described as Lot 3 DP 557050 & Lot A DP 103830 subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – mixed use development – clause 4.6 request to vary height of buildings development standard – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.16, Div 4.8, Pt 4

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No. 65 —Design Quality of Residential Apartment Development 2002

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

Environmental Planning and Assessment Regulation 2000, cl 55

Bayside Local Environmental Plan 2021 cll 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.7, 6.8, 6.9, 6.11,

Water Management Act 2000

Texts Cited:

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

Category:

Principal judgment

Parties:

Hone Constructions Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Reid (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/83424

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal by Bayside Council of development application 2021/463, which seeks consent for the demolition of existing structures, removal of trees and construction of a five-storey mixed-use development comprising of a commercial tenancy and 23 residential units, 2 basement levels and associated landscaping at 30-34 High Street, Mascot, Lot 3 in DP 557050 and Lot A DP 103830 (the site).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. On 17 November 2022 the Court granted leave to the Applicant to amend the application with revised drawings and associated reports (first amended application). On the basis of this amended application, the matter proceeded to a hearing on 11 May 2023 and commenced on site. Upon the commencement of the hearing in Court, the parties advised that further without-prejudice discussions had occurred following the site view, and an in-principle agreement had been reached between the parties. The hearing was adjourned to allow for further drawing amendments which were filed with the Court on 12 May 2023 (final amended application). Subsequently, at their request, the Court arranged a further conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 12 May 2023. I presided over both the hearing and the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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 one 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following:

1. The development application was made with the consent of the landowners, as demonstrated in the Class 1 Application.

2. This application was notified between 6 October and 5 November 2021. Three submissions were received and considered by the parties, and the first amended application was re-notified to those residents who had made a submission. One further submission was received and again considered by the parties. The parties submit and, based on the information contained in the Respondent’s Bundle of Documents, I accept that each of the amendments that have been made were made with consideration of, and in response to the concerns of the Respondent and the objectors, and that the final amended development application reflects this.

3. Pursuant to Div 4.8 of Pt 4 of the EPA Act, the development is integrated development and requires approval under the Water Management Act 2000. Water NSW provided a response on 6 December 2021 and I note that the conditions required in this response have been included as conditions of consent.

4. The proposed development is characterised as a mixed-use development comprising business/retail premises and residential apartments. Pursuant to the Bayside Local Environmental Plan 2021 (BLEP) the subject site is zoned E1 Local Centre, within which residential flat buildings are prohibited. However, cl 6.9 of the BLEP applies, which permits mixed-use development on the land if the land is shown on the Active Street Frontages Map and the development includes residential accommodation and business premises and/or retail premises, if the business and/or retail premises are located on the ground floor with an active street frontage. Based on the final amended drawings and the parties’ submission I am satisfied that the proposed development meets this test and is permissible pursuant to BLEP cl 6.9.

5. BLEP cl 2.7 provides that the proposed demolition of existing structures is permissible with consent.

6. The parties submit and, based on this and the information contained in the Statement of Environmental Effects I am satisfied that the proposed development meets the relevant objectives of the E1 zone.

7. The proposed development exceeds the 14m height of buildings development standard set by BLEP cl 4.3. The non-compliance results from the set-back upper storey and parapet and equates to a variation of 3.375m from the development standard. BLEP cl 4.6(3) requires a written request which demonstrates that compliance with the height of buildings 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. To that end, the applicant has submitted a written request prepared by GAT & Associates dated 12 May 2023 (the written request). Pursuant to cl 4.6 I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the E1 Local Centre Zone and the Height of Buildings development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not create any additional significant adverse impacts.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the height limit is the result of a redistribution of massing of the built form to provide a more appropriate and better transition to the adjoining low density residential zones. Further, the non-compliance will not have any adverse visual impact to the public domain or neighbouring properties. The contravention is therefore justified by the appropriate design response to the context of the locality and the desired future character of the area, and the lack of resulting adverse impacts.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

8. Pursuant to BLEP cl 4.4, a floor space ratio (FSR) of 2:1 applies to the subject site. The proposed development has a FSR of 1.93:1.

9. Pursuant to BLEP cl 6.1, the land is mapped as Class 4 for the purposes of Acid Sulfate Soils. An Acid Sulfate Soils Assessment and Revised Management Plan have been prepared in relation to this development and, based on this and the parties’ submission I am satisfied that the requirements of BLEP cl 6.1 are met.

10. BLEP cl 6.2 applies to the subject site. The parties submit and I accept that, based on the information contained in the Preliminary Geotechnical Report dated 20 September 2021, Geotechnical Investigation Report dated 1 October 2021, Dewatering Management Plan dated 12 September 2022 and contamination investigation reports, the requirements of this clause have been satisfied.

11. Pursuant to the requirements of BLEP cl 6.3, the parties submit, and I accept that, based on the Stormwater Plans and report, flood report and dewatering management plan, and the imposition of the relevant conditions of consent, the requirements of BLEP cl 6.3 have been met.

12. Due to the proximity of the site to Sydney Airport and pursuant to BLEP cl 6.7, the parties submit, and I accept that the DA was referred to the relevant authority and found to be acceptable in relation to airspace operations. A further condition of consent has been imposed that requires approval if construction works are to exceed the relevant obstacle height limit.

13. Pursuant to BLEP cl 6.8 the parties submit, and I accept that the submitted acoustic report and relevant conditions of consent satisfy the requirements of this clause in relation to development in areas subject to aircraft noise.

14. Pursuant to BLEP cl 6.9, the subject site requires an active street frontage along High Street. The parties submit and, based on this and the architectural drawings before the Court, I accept that the building has been adequately designed to have an active street frontage as per the requirements of this clause.

15. Pursuant to BLEP cl 6.11 the parties submit, and I accept that all essential services are already available to the subject site or will be made available when required.

16. The parties submit and, based on the preliminary and detailed site investigation reports prepared by eiaustralia, I am satisfied that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 are met and that, in terms of contamination, the site is suitable for the intended use.

17. An updated BASIX certificate has been filed with the Court that applies to the proposed development. Conditions of consent have been further applied that require compliance with this certificate, meeting the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

18. A Design Verification Statement has been prepared that assesses the proposed development against the relevant design principles set out in State Environmental Planning Policy No. 65 —Design Quality of Residential Apartment Development 2002 (SEPP 65), as well as the objectives and design criteria set out in the Apartment Design Guide (ADG). The parties submit and I accept that the proposed development adequately meets the relevant requirements of both SEPP 65 and the ADG.

19. Pursuant to the requirements of State Environmental Planning Policy (Biodiversity and Conservation) 2021, any vegetation clearing requires the consent of Council. Subsequently, consent to remove trees is requested in this development application, and the parties have agreed on relevant conditions of consent for tree removal and replacement.

6. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. As the parties’ decision is one 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.

8. The Court notes:

1. Bayside Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. 2021/463 to rely upon the following amended plans and documents (Amended Development Application):

1. Architectural drawings A-DA-001-001, A-DA-001-002, A-DA-001-003, A-DA-001-004, A-DA-001-005, A-DA-001-006, A-DA-001-007, A-DA-001-008, A-DA-001-009, A-DA-100-1, A-DA-101-001, A-DA-110-001, A-DA-110-002, A-DA-110-003, A-DA-110-004, A-DA-110-005, A-DA-110-006, A-DA-110-007, A-DA-110-008, A-DA-210-001, A-DA-210-002, A-DA-210-003, A-DA-210-004, A-DA-310-001, A-DA-310-002, A-DA-310-003, A-DA-620-001, A-DA-630-001, A-DA-001-001, A-DA-710-001, A-DA-720-001, A-DA-720-002, A-DA-720-003, A-DA-720-004, A-DA-730-001, A-DA-730-002, A-DA-730-003, A-DA-740-001, A-DA-750-001, A-DA-760-001, A-DA-760-002, A-DA-770-001, A-DA-770-002 (all revision 05) and A-DA-900-001 & A-DA-900-002 Revision 4 and all dated 11 May 2023, prepared by Benson McCormack Architecture;

2. Written request pursuant to clause 4.6 of Bayside Local Environmental Plan 2021 (BLEP) seeking a variation of clause 4.3 - Height of Buildings of the BLEP prepared by GAT & Associates dated May 2023.

3. BASIX Certificate Number 1233341M_04 prepared by GAT and Associates dated 12 May 2023.

2. The Applicant has filed the Amended Development Application with the Court.

9. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being granted leave to file the Amended Development Application within 90 days of the date of these orders, which costs are agreed in the amount of $25,000 which includes the costs ordered by the Court on the motion filed on 9 November 2022 together with the costs the subject of this order.

2. The written request pursuant to clause 4.6 of Bayside Local Environmental Plan 2021 (BLEP) seeking a variation of clause 4.3 - Height of Buildings of BLEP prepared by GAT & Associates dated May 2023 is upheld.

3. The appeal is upheld.

4. Development Consent is granted to Development Application No. 2021/463 for the demolition of existing structures, removal of trees and construction of a 5 storey building mixed use development comprising of a commercial tenancy to be used for business premises or retail premises and 23 residential units, 2 basement levels and associated landscaping at 30 & 34 High Street, Mascot legally described as Lot 3 DP 557050 & Lot A DP 103830 subject to the conditions contained in Annexure A.

E Washington

Acting Commissioner of the Court

Annexure A

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Decision last updated: 16 June 2023