J & J Mascot Developments Pty Ltd v Bayside Council

[2023] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

J & J Mascot Developments Pty Ltd v Bayside Council [2023] NSWLEC 1666

Hearing dates:

Conciliation conference held 20 June, 17 July, 25 August, 11 and 18 September, 3 and 9 October 2023

Date of orders:

08 November 2023

Decision date:

08 November 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-2021/373 and rely upon the amended plans and documents referred to in condition 1 at 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 $28,000 within 60 days of the date of these orders.

(3) The Applicant’s written request, pursuant to clause 4.6 of the Botany Bay Local Environmental Plan 2013 (BBLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the BBLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA-2021/373 (as amended) for demolition of existing structures and construction of a part four- and part five-storey mixed use development comprising a commercial tenancy and 45 residential units, with two levels of basement car parking and associated landscaping and site works at 1077 Botany Road, Mascot, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

Airports (Protection of Airspace) Regulations 1996

Bayside Local Environmental Plan 2021

Botany Bay Local Environmental Plan 2013, cll 2.3 4.3, 4.6, 5.10, 6.1, 6.2, 6.3, 6.8, 6.9, 6.15

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50, 55

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120, 2.122

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28

Texts Cited:

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

NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

J & J Mascot Developments Pty Ltd (First Applicant)
P & J Mascot Developments Pty Ltd (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (First and Second Applicant)
P Brown (Solicitor) (Respondent)

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

File Number(s):

2022/387830

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by J & J Mascot Developments Pty Ltd (the Applicant), against the refusal of Development Application DA-2021/373 (the DA) by Bayside Council (the Respondent). The DA sought consent for demolition of existing structures and construction of a part four- and part five-storey mixed use development comprising a commercial tenancy and 51 residential units, with two levels of basement car parking and associated landscaping and site works at 1077 Botany Road, Mascot, (the site).

2. 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 20 June, 17 July, 25 August, 11 and 18 September, 3 and 9 October 2023. I presided over the conciliation conference.

3. 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.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of site contamination, site suitability, desired future character, building height, building separation, visual privacy and design quality.

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 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. 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.

8. The DA was publicly notified from 18 August to 30 September 2021. Twenty-three submissions were received by the Respondent.

9. The parties agree that the amended DA now satisfactorily resolves the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

10. The parties agree, and I am satisfied, that the Botany Bay Local Environmental Plan 2013 (BBLEP) is the relevant local environmental planning instrument. Bayside Local Environmental Plan 2021 commenced on 27 August 2021 and was a draft Environmental Planning Instrument at the time of lodgement of the DA.

11. The site is zoned B2 Local Centre and the proposed development - characterised as mixed use commercial and residential apartment building development - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the BBLEP, the proposed development is consistent with the B2 Local Centre zone objectives, which include providing 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.

13. The parties agree, and I am satisfied, that all principal development standards of the BBLEP have been met by the amended DA, with the exception of cl 4.3, Height of buildings, which establishes a maximum height of building development standard of 14m for the site.

14. In such an instance, cl 4.6(3) of the BBLEP 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.

15. Clause 4.6(4) of the BBLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that 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.

16. Additionally, cl 4.6(4)(b) of the BBLEP 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.

17. As required by cl 4.6 of the BBLEP, the Applicant has provided a written request, prepared by GAT & Associates and dated June 2023, seeking to vary the height of buildings development standard set out at cl 4.3.

18. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard of 14m for the following reasons:

1. The DA was amended during the conciliation conference to omit the fifth level of Building A and now proposes a maximum building height of 17.6m, exceeding the development standard by 3.6m and representing a variation of approximately 26%.

2. The areas of exceedance of the maximum building height standard are generally centred within the building footprints, providing a setback such that the non-compliant areas are less able to be perceived in the general presentation of the building to the street, and configured in a manner that is broadly consistent with the desired future character and scale of development appropriate to the locality.

3. The areas of height exceedance are typically limited to lift overruns and recessive building elements associated with the provision of access and amenity to rooftop communal open space in an area where it receives good solar access and avoids cross viewing and privacy conflicts.

4. The proposed development does not give rise to additional adverse visual impacts or overshadowing of neighbouring properties, with additional shadowing falling primarily onto Botany Road.

5. The objectives of cl 4.3 of the BBLEP include ensuring that taller buildings are appropriately located, that building height is consistent with the desired future character of an area, that visual impacts, disruption of views, loss of privacy and loss of solar access to existing development are minimised, and to ensure that buildings do not adversely affect the streetscape, skyline or landscape when viewed from adjoining roads and other public places. I am satisfied the amended DA meets these objectives.

6. The objectives of the BBLEP Zone B2 Local Centre land use zone include providing 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. I am satisfied the amended DA meets these objectives.

19. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

20. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the BBLEP, Heritage conservation, the site is not identified as a heritage item, nor is it situated within a heritage conservation area. However, the site does directly abut a locally listed heritage item at 1075 Botany Road (item I135), and the amended DA has been appropriately set back from this common boundary to establish a clear separation between the heritage item and the DA.

21. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the BBLEP, Acid sulfate soils, the site is mapped as being within a Class 4 acid sulfate soils area. The Applicant has provided a Acid Sulfate Soils Management Plan, prepared by EI Australia and dated 12 November 2021 in satisfaction of cl 6.1(3) of the BBLEP. Agreed conditions of consent have been imposed to ensure compliance with the recommendations of this Plan.

22. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the BBLEP, Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by EI Australia and dated 26 November 2021. This report has been assessed by the Respondent and I am satisfied it appropriately addresses the matters set out at cl 6.2(3). Agreed conditions of consent reflecting the report’s recommendations are imposed.

23. The parties agree, and I am satisfied, that cl 6.3 of the BBLEP, Stormwater management, is a matter for consideration. The DA incorporates stormwater management measures including a detention tank, pump out system and absorption trench, sufficient to satisfy the objectives of cl 6.3. Conditions of consent are imposed to ensure maintenance and upkeep of stormwater management measures.

24. The parties agree, and I am satisfied, that pursuant to cl 6.8 of the BBLEP, Airspace operations, the DA has been referred to Sydney Airport Corporation Limited, which has raised no concern regarding the height of the development affecting aircraft safety.

25. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the BBLEP, Development in areas subject to aircraft noise, the site is situated in an area subject to an Australian Noise Exposure Forecast (ANEF) contour of 25-30. The Applicant has provided an Acoustic Report prepared by Acoustic Noise and Vibration Services and dated 22 July 2021. The report recommends various acoustic treatments to ameliorate the effects of aircraft noise. Conditions are imposed reflecting the report’s recommendations.

26. The parties agree, and I am satisfied, that pursuant to cl 6.15 of the BBLEP, Active street frontages, the site has a frontage to Botany Road, which requires active frontage. Accordingly, the DA includes a ground floor commercial tenancy addressing Botany Road in satisfaction of cl 6.15.

27. The parties agree, and I am satisfied, that the Airports (Protection of Airspace) Regulations 1996 applies to the site. The DA was referred to the Sydney Airport Corporation Limited, which raised no concern regarding the height of the DA.

28. 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. The site currently accommodates a petrol station and is known to be contaminated. The Applicant has provided a total of five site investigation reports, together with a Remediation Action Plan, prepared by EI Australia and dated 6 September 2023, that addresses site contamination and remediation.

29. The recommendations of these various site investigation reports and Remediation Action Plan are agreed to satisfactory result in the land being able to be made suitable for the proposed development. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards. Conditions of consent reflecting the various reports’ recommendations are imposed.

30. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65).

31. Pursuant to cl 28(2) of SEPP 65, the DA was referred to the Respondent’s Design Review Panel on two occasions in March and June 2022 and raised a number of matters. The parties agree, and I am satisfied, that matters raised by the Design Review Panel in its advice have been considered and have been appropriately addressed in the amended DA.

32. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Benson McCormack Architecture (and its nominated architect Mr Glenn McCormack - NSW registered architect 7536) has prepared a Design Verification Statement, fulfilling the requirements of cl 50(1A) of the EPA Reg and confirming that the amended DA achieves the Design Quality Principles set out in SEPP 65. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA.

33. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. In accordance with s 2.48 of SEPP Infrastructure the DA proposes works within the vicinity of electricity infrastructure. Accordingly, the DA was referred to Ausgrid, which has responded and does not object to the proposed development.

34. In accordance with ss 2.119, 2.120 and 2.122 of SEPP Infrastructure, the DA occupies a site with a sole frontage to a classified road, being Botany Road. Accordingly, the DA was referred to Transport for NSW, which has responded raising no objections and seeking to impose standard conditions of consent.

35. Further, the Applicant has provided an Acoustic Report prepared by Acoustic Noise and Vibration Services and dated 22 July 2021. The report recommends various acoustic treatments to ameliorate the effects of traffic noise related to Botany road. Conditions are imposed reflecting the report’s recommendations.

36. 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 (BASIX). A BASIX certificate number 1224470M_05, prepared GAT and Associates and dated 9 October 2023 has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

37. 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.

38. The Court notes that:

1. Pursuant to clause 55 of the EPA Reg, the Applicant has amended the DA with the agreement of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 23 October 2023.

Orders

39. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-2021/373 and rely upon the amended plans and documents referred to in condition 1 at 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 $28,000 within 60 days of the date of these orders.

3. The Applicant’s written request, pursuant to clause 4.6 of the Botany Bay Local Environmental Plan 2013 (BBLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the BBLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA-2021/373 (as amended) for demolition of existing structures and construction of a part four- and part five-storey mixed use development comprising a commercial tenancy and 45 residential units, with two levels of basement car parking and associated landscaping and site works at 1077 Botany Road, Mascot, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

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Decision last updated: 08 November 2023