INSDL Land Pty Ltd as the Trustee for INSDL Land Unit Trust v Bayside Council - [2022] NSWLEC 1548

Land and Environment Court

New South Wales

Medium Neutral Citation: INSDL Land Pty Ltd as the Trustee for INSDL Land Unit Trust v Bayside Council [2022] NSWLEC 1548
Hearing dates: Conciliation conference held 19 August 2022, and 12 and 19 September 2022, final agreement filed 20 September 2022
Date of orders: 07 October 2022
Decision date: 07 October 2022
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-2022/3 and rely on the amended plans and documents listed at condition 1 of Annexure A.
(2) Pursuant to section 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 in the agreed sum of $20,000.
(3) The Applicant’s written request, pursuant to clause 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the BLEP, is upheld.
(4) The appeal is upheld.
(5) Consent is granted to Development Application DA-2022/3 (as amended) for the demolition of existing structures, tree removal, excavation, construction of an eight-storey residential flat building containing 71 apartments with car parking over two basement levels, public walkway along the eastern boundary of the site, and landscaping at 1-7 Innesdale Road, Wolli Creek, subject to the conditions set out in Annexure A.

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

Legislation Cited:
Land and Environment Court Act 1979 s 34
Water Management Act 2000 s 90
Environmental Planning and Assessment Act 1979 ss 4.16, 4.47, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000 cll 50, 55
Bayside Local Environmental Plan 2021 cll 2.7, 4.3, 4.6, 5.21, 6.1, 6.2, 6.3, 6.7, 6.10, 6.11
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)
Rockdale Development Control Plan 2011

Category: Principal judgment
Parties: INSDL Land Pty Ltd as the Trustee for INSDL Land Unit Trust (Applicant)
Bayside Council (Respondent)
Representation:
Counsel:
R Pleming (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)
Solicitors:
Allens (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2022/157551
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-2022/3 (the DA) by Bayside Council (the Respondent). The DA sought consent for the demolition of existing structures, tree removal and construction of an eight-storey residential flat building containing 71 apartments over two basement car parking levels at 1, 3, 5 and 7 Innesdale Road, Wolli Creek (the site).
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 18 August, and 12 and 19 September 2022. I presided over the conciliation conference.
Prior to the commencement of the conciliation conference, on 10 June 2022, the Court granted leave to the Applicant to amend the DA and rely upon amended plans and documents.
Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view before resuming at the offices of the Respondent. Subsequent mentions were conducted by Microsoft Teams.
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.
Whilst the amended DA remains largely consistent with the original DA, a series of design changes cumulatively resolve the contentions initially raised by the Respondent, which in turn related to impacts associated with the contravention of the height of buildings development standard, the failure to provide a through site link anticipated by the Rockdale Development Control Plan 2011 (RDCP), streetscape character, building design, expression and presentation, housing choice, site coverage, landscape design and design excellence amongst other contentions.
Of particular note, the final amended DA has been reconfigured to include a portion of the anticipated through site link, in a manner which enables its extension and completion into the future with the renewal of neighbouring properties. Other, more minor, design amendments have also improved internal residential amenity, landscape design and the resultant architectural character of the proposal. The final amended DA continues to comprise a total of 71 apartments and the height exceedance evident in the original DA has been marginally reduced in a form now able to be supported by the Respondent.
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.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
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.
The original DA was publicly notified from 27 January to 28 February 2022. Ten submissions were received by the Respondent. Upon the Court granting leave to the Applicant to amend the DA on 10 June 2022, the amended DA was once again publicly notified from 22 June to 22 July 2022. No further submissions were received during this second public notification period.
The parties agree, and I am satisfied, the final amended DA is defined as Integrated Development requiring a Water Supply Work Approval under s 90(2) of the Water Management Act 2000. Consequently, and pursuant to s 4.47 of the EPA Act, General Terms of Approval have been issued by Water NSW and are incorporated into the agreed conditions of consent.
The parties agree, and I am satisfied, that the Bayside Local Environmental Plan 2021 (BLEP) is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent.
The parties agree, and I am satisfied, that pursuant to cl 2.7 - Demolition requires consent - of the BLEP, the final amended DA seeks consent for demolition of the existing dwellings at the site.
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 - which establishes a height of buildings standard of 26.5m for the site.
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.
Clause 4.6(4) of the BLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and 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.
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 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.
As required by cl 4.6 of the BLEP, the Applicant has provided a written request (prepared by DFP Planning and dated 30 August 2022) seeking to vary the height of buildings development standard.
The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard for the following reasons:
The objectives of the BLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment, providing a variety of housing types and providing residential development in accessible locations close to public transport. I am satisfied the amended DA meets these objectives.
The objectives of cl 4.3 of the BLEP seek to ensure that proposed building height is consistent with the desired future character of an area, minimising the visual impact of development, disruption of views, loss of privacy and loss of solar access to existing development. I am satisfied the amended DA meets these objectives.
The final amended DA exceeds the 26.5m height of building standard. The development proposes a maximum height of 28.755m which is 2.255m greater than the standard, or a variation of approximately 8.5%.
The DA has been amended to resolve the contentions previously raised by the Respondent, and in particular has now been reconfigured to provide the anticipated through site link. I am satisfied the variation to the height of building development standard brings with it no material environmental impacts or additional overshadowing. The area of greatest height exceedance is associated with the eastern building’s lift overrun and rooftop plant area, which are situated towards the centre of the site where its visibility diminishes from public vantage points.
Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variations to maximum building height.
The parties agree, and I am satisfied, that pursuant to cl 5.21 - Flood planning - of the BLEP, the site is identified within a flood planning area and the final amended DA meets the requirements of cl 5.21(2), noting the proposal provides for a minimum habitable floor level and crest to the basement driveway, each exceeding the relevant Flood Planning Level.
The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils - of the BLEP, the site is mapped as Class 3 and the proposal involves works more than 1m below the natural ground surface. The Applicant has prepared a Geotechnical Assessment which has assessed the soils within the site as non-saline, fulfilling the requirements of cl 6.1(3).
The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the BLEP, the amended DA will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. I note that the parties agree the proposed earthworks are acceptable, subject to the Water NSW General Terms of Approval, which form part of the agreed conditions of consent.
The parties agree, and I am satisfied, that pursuant to cl 6.3 - Stormwater and water sensitive urban design - of the BLEP, the Applicant’s Stormwater Management Plan and amended civil engineering plans satisfactorily address the matters set out at cl 6.3(2).
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.7 - Airspace operation - of the BLEP. The proposed building does not exceed the Obstacle Limitation Surface in the locality.
The parties agree, and I am satisfied, that the final amended DA meets the requirements of cl 6.10 - Design excellence - of the BLEP, and exhibits design excellence in the terms set out at cl 6.10(4) partly as a result of the provision of the through site link. Additionally, the Respondent’s Design Review Panel (the Panel) reviewed the original DA and the Respondent has taken into account the findings of the Panel in accordance with cl 6.10(5).
The parties agree, and I am satisfied, that the final amended DA meets the requirements of cl 6.11 - Essential services - of the BLEP, as the site is already serviced (or is capable of being serviced) by water, electricity, sewerage, stormwater drainage and vehicular access.
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. Having regard to the historic use of the site for residential purposes, the parties agree the land is unlikely to be contaminated. Additionally, the Applicant has provided a Preliminary Site Investigation, dated 7 December 2021, which concludes the site can be made suitable for the proposed development. Agreed conditions of consent require a hazardous building materials assessment to be prepared prior to demolition, and testing of excavated material before excavated soils are disposed of. Accordingly, I am satisfied the final amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate has been submitted with the DA (as amended). Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, DKO Architecture, has prepared a Design Verification Statement, dated 2 September 2022, fulfilling the requirements of cl 50(1AB) of the EPA Reg, and confirming that the final amended DA achieves the Design Quality Principles set out in SEPP 65.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. The requirements of Ch 2 of SEPP BC are satisfied since the final amended DA seeks consent for the removal of prescribed trees.
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.
The Court notes that:

Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent.

The amended DA was uploaded to the NSW Planning Portal on 21 September 2022.

The Applicant has filed the amended DA with the Court on 21 September 2022.

Orders

The Court orders that:

Leave is granted to the Applicant to amend Development Application DA-2022/3 and rely on the amended plans and documents listed at condition 1 of Annexure A.

Pursuant to section 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 in the agreed sum of $20,000.

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

The appeal is upheld.

Consent is granted to Development Application DA-2022/3 (as amended) for the demolition of existing structures, tree removal, excavation, construction of an eight-storey residential flat building containing 71 apartments with car parking over two basement levels, public walkway along the eastern boundary of the site, and landscaping at 1-7 Innesdale Road, Wolli Creek, subject to the conditions set out in Annexure A.

………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (623320, pdf)

*********

Decision last updated: 07 October 2022

Medium Neutral Citation:	INSDL Land Pty Ltd as the Trustee for INSDL Land Unit Trust v Bayside Council [2022] NSWLEC 1548
Hearing dates:	Conciliation conference held 19 August 2022, and 12 and 19 September 2022, final agreement filed 20 September 2022
Date of orders:	07 October 2022
Decision date:	07 October 2022
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-2022/3 and rely on the amended plans and documents listed at condition 1 of Annexure A. (2) Pursuant to section 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 in the agreed sum of $20,000. (3) The Applicant’s written request, pursuant to clause 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the BLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA-2022/3 (as amended) for the demolition of existing structures, tree removal, excavation, construction of an eight-storey residential flat building containing 71 apartments with car parking over two basement levels, public walkway along the eastern boundary of the site, and landscaping at 1-7 Innesdale Road, Wolli Creek, subject to the conditions set out in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders
Legislation Cited:	Land and Environment Court Act 1979 s 34 Water Management Act 2000 s 90 Environmental Planning and Assessment Act 1979 ss 4.16, 4.47, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000 cll 50, 55 Bayside Local Environmental Plan 2021 cll 2.7, 4.3, 4.6, 5.21, 6.1, 6.2, 6.3, 6.7, 6.10, 6.11 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) Rockdale Development Control Plan 2011
Category:	Principal judgment
Parties:	INSDL Land Pty Ltd as the Trustee for INSDL Land Unit Trust (Applicant) Bayside Council (Respondent)
Representation:	Counsel: R Pleming (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Allens (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2022/157551
Publication restriction:	Nil