K2 Five Dock Pty Ltd v City of Canada Bay Council

[2024] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:

K2 Five Dock Pty Ltd v City of Canada Bay Council [2024] NSWLEC 1088

Hearing dates:

Conciliation Conferences on 5 October, 6 and 20 November 2023 and 14 December 2023.

Date of orders:

1 March 2024

Decision date:

01 March 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, in the amount of $12,500, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) The request pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 to vary the development standard for height contained within cl 4.3 thereof, as prepared by Plan Urban dated 8 November 2023, is upheld.

(4) The request pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 to vary the development standard for mix of dwellings in mixed use development contained within cl 6.11 thereof, as prepared by Plan Urban dated 20 November 2023, is upheld.

(5) Development consent is granted to development application No. DA2022/0316 as amended, for the demolition of existing structures and the construction of a new shop top housing development containing two basement levels, ground level commercial tenancies, four levels of residential apartments and related landscaping on land legally known as Lots A, B and C, DP 381858 at 52 – 56 Ramsay Road, Five Dock, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variations - orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Canada Bay Local Environmental Plan 2013, cll 2.2, 2.3, 4.1, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, and 6.11

Environmental Planning and Assessment Regulation 2021, ss 29 and 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9 and 6.10

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Part 2.3, ss 2.118, 2.119, 2.120 and 2.122

State Environmental Planning Policy No. 65 (Design Quality of Residential Apartment Development), cl 30(2)

Texts Cited:

Canada Bay Community Participation Plan

Canada Bay Local Housing Strategy 2019

City of Canada Bay Development Control Plan 2023

City of Canada Bay Local Strategic Planning Statement 2020

Category:

Principal judgment

Parties:

K2 Five Dock Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

23/170807

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) against the deemed refusal by the City of Canada Bay Council of development application DA /2022/0316 (the DA) for the demolition of existing structures and the construction of a new shop top housing development containing two basement levels, ground level commercial tenancies, four levels of residential apartments and related landscaping (the Development Application) on land legally known as Lots A, B and C, DP 381858 at Nos 52 – 56 Ramsay Road, Five Dock (the site).

2. 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 5 October 2023. I presided over the conciliation conference, which commenced with a site inspection, and was attended by a number of objectors. Three persons made verbal submissions.

3. The s 34 conciliation conference was adjourned to 6 November 2023 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned to 20 November 2023 and 14 December 2023 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

4. After the conciliation conferences, and re-notification of the amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The parties advise that the key changes made in the amended DA differ from the earlier plans as follows:

1. Clarify the overall building height, particularly confirming areas of non-compliance with the Height of Buildings development standard at cl 4.3 of the Canada Bay Local Environmental Plan 2013 (the LEP) with an accompanying clause 4.6 written request to address same;

2. Update the dwelling mix to provide for five one bedroom units accompanied by a cl 4.6 written request to vary the dwelling mix in the development standard for the mix of dwelling sizes at cl 6.11 of the LEP;

3. Include the extension of the awning across the full frontage of Ramsay Road following the topography;

4. Add privacy screens supplemented by window surrounds;

5. Increase bulky waste storage to 5m², including a minimum door width of 1400mm and increase of additional bin;

6. Correct driveway entry to match the section plans; and

7. Relocate bicycle spaces to provide more space for reversing movement at B2 level.

6. Additional and updated reports in relation to traffic and an updated Statement of Environmental Effects were submitted to the Respondent in support of the Amended DA.

7. A signed s 34 agreement with Annexures ‘A’ and ‘B’ was filed with the Court on 21 December 2023, with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The DA was formally lodged by the registered proprietors of the subject site, who provided owner’s consent.

Community Participation (Sch 1, Div 2, s 7(1))

12. The DA was notified by the respondent for a period of 21 days, between 24 November 2022 and 15 December 2022, as required under the provisions of Canada Bay Community Participation Plan. Sixteen (16) submissions were received in response to that notification.

13. The amended DA was re-notified between 23 November 2023 to 14 December 2023 by the Respondent in accordance with the Council’s Community Participation Plan, satisfying the requirement for public participation in the EP&A Act. Five (5) submissions were received.

Conditions

14. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Canada Bay Local Environmental Plan 2023

15. The LEP applies to the Site and to the proposed development. Under the LEP provisions:

1. The site is zoned MU1 Mixed Use zone pursuant to cl 2.2 of the LEP; and:

1. The proposed development (including for the purpose of shop top housing) is permitted with consent within the MU1 Mixed zone; and

2. The parties advise that the proposed development achieves the objectives of the MU1 zone at cl 2.3 of the LEP. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

3. Both the DA and the amended DA do not propose subdivision works, and the parties submit that accordingly, clause 4.1 of the LEP is not enlivened by the DA.

2. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 15 metres. The parties advise that the amended DA provides a maximum height variation ranging between 1233mm (in the north east corner of the proposed building) and 1978mm (on the proposed building’s southern elevation); and

3. The Applicant submitted a cl 4.6 written request for the amended DA prepared by Plan Urban dated 8 November 2023. The parties have advised that the Court can be satisfied that compliance with the height development standard in cl 4.3 of the LEP is unreasonable or unnecessary in the circumstances that there are sufficient environmental planning grounds to permit the variation and that the development is in the public interest because it achieves the objectives of the Mixed Use 1 zone in the LEP; and

1. I am satisfied that the applicant’s amended cl 4.6 written request is well founded and that the variation to the maximum height development (HoB) standard is acceptable noting that:

4. The provisions of cl 4.3(2) of the LEP provide a maximum height of buildings of 15 metres for development on the subject site. The breach in the HoB development standard arises partly from the design of the proposed building taking into account the fall of the land, and partly from the desired outcome to provide an active street frontage at ground level to Ramsay Road;

5. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

6. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. the site falls by up to 1.5m in a south-easterly direction along Ramsay Road (away from the Five Dock Commercial Centre);

2. the site provides for a transition between existing 4 to 5 storey buildings in the Five Dock Commercial Centre (zoned E1 Local Centre zone) to the north and west of the site and 2 to 3 storey shop-top housing developments (zoned R3 Medium Residential zone) to the south of the site;

3. the areas of non-compliance on the upper level of the proposed development are well set back from the proposed building’s edges and do not present as additional building bulk from street level, and have been designed to protect the amenity of adjoining residential units;

4. the alternative design approach of setting the ground level of the proposed building lower into the site would preclude an active frontage of commercial and non-residential land uses to Ramsay Road, which is a key objective of the MU 1 Mixed Use zone.

7. Approval of the proposed development will be in the public interest for the reasons provided above (at [5] and [6]) and because the proposed development is consistent with the objectives for the HoB development standard and for development within the MU1 Mixed Use zoning of the subject site for reasons provided within the applicant’s written request, which I also adopt.

8. Pursuant to cl 4.4 of the LEP a maximum floor space ratio (FSR) of 2.5:1 applies to the site; and

1. The proposed development has a FSR of 2.44:1, in compliance with this development standard.

9. Pursuant to cl 5.10 of the LEP, the parties advise that the site is not a heritage item and not within a heritage conservation area, accordingly cl 5.10 of the LEP is not enlivened by the Development Application; and

1. The Site is located directly across the road from 177 First Avenue, Five Dock, which is listed as an Item of Environmental heritage under the LEP. The parties advise that a Statement of Heritage Impact has been prepared by Archnex Designs dated 4 October 2022 which concluded that the proposed development would have no adverse impacts on the significance and setting of this heritage item.

10. Pursuant to cl 5.21 of the LEP, the parties advise that the site is not identified as a ‘Flood Planning Area’, and that the DA is accompanied by an Overland Flow Assessment Report, prepared by Martens dated 8 September 2023 which concluded that the Development Application would have low to negligible effects on flood conditions that that the proposed building would be flood free in the 1% AEP flood event.

11. Clause 6.1 of the LEP relates to acid sulfate soils. The parties advise that the site is identified as being affected by acid sulfate soils Class 5 on the Acid Sulfate Soils Map; and

1. Whilst the site is within 500 metres of adjacent acid sulfate soils Class 4 land, it is unlikely to lower the water table on the adjacent class land below 1 metre Australian Height Datum and accordingly an acid sulfate management plan is not required. Nonetheless, the Certified Environmental Practitioner Site Contamination Specialist Review of Remedial Action Plan prepared by Old Maple Pty Ltd dated 13 September 2023 confirmed that the Site is not within an area known to have acid sulfate soil occurrence.

12. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granted development consent for earthworks. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the Site and adjoining properties; and

1. The parties advised that the extent of proposed earthworks is unlikely to result in a significant or adverse impacts to the soil at the site. A detailed stormwater management and drainage plan has been prepared and accompanies the DA. The plans detail the provision for onsite stormwater detention and various control measures across the site. The parties advised that the proposed development is unlikely to disrupt or negatively impact on neighbouring land uses or structures with adequate measures proposed.

13. Pursuant to cl 6.11 of the LEP, development consent for a mixed used development cannot be granted unless at least 20% of the dwellings, to the nearest whole number of dwellings in the development will be studio or one bedroom dwellings; and at least 20% of the dwellings, to the nearest whole number of dwellings in the development, will have at least three bedrooms. The proposed development proposes a total number of 27 units, comprising of 5 x 1 bedroom units; 10 x 2 bedroom units; and 12 x 3 bedroom units; and

1. Notwithstanding that the Applicant considers that the Clause 4.6 variation is not required under its interpretation of the provisions of cl 6.11, the Applicant submitted an amended cl 4.6 written request prepared by Plan Urban dated 20 November 2023 for the amended DA. The parties advised that the Court could be satisfied that that compliance with the mix of dwelling sizes in cl 6.11 of the LEP is unreasonable or unnecessary in the circumstances that there are sufficient environmental planning grounds to permit the variation and that the development is in the public interest because it achieves the objectives of the Mixed Use 1 zone in the LEP;

2. I am satisfied that the applicant’s amended cl 4.6 written request is well founded and that the variation to the mix of development sizes standard is acceptable noting that:

14. The proposal development includes 5 one bedroom units, 10 two bedroom units and 12 three bedroom units. The provisions of cl 6.11(3) of the LEP require 20% of the total number of units to be one bedroom or studio. The Respondent’s calculation is that there is a breach in the mix of dwelling sizes development standard which would require an additional one bedroom unit to be provided;

15. I am satisfied that compliance with the mix of dwelling sizes development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the mix of dwelling sizes development standard notwithstanding the shortfall of a single one bedroom unit in the proposed development, for the reasons provided within the Applicant’s written request, which I adopt;

16. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the mix of dwelling sizes development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. the proposed development will provide housing choice for different demographics, living needs and household budgets within the one development and provide for varied housing opportunities adjacent to the Five Dock Commercial Centre;

2. Canada Bay Council’s Local Strategic Planning Statement and Local Housing Strategy identify a need for a variation in unit sizes to suit various demographics, in particular to accommodate a greater number of families seeking apartment living in the municipality;

3. the proposed minor variation in the dwelling mix does not undermine the provision of a range of dwelling types and sizes, and achieves the objectives of cl 6.11 of the LEP;

17. Approval of the proposed development will be in the public interest for the reasons provided above (at [15] and [16]), and because the proposed development is consistent with the objectives for the mix of dwelling sizes development standard and for development within the MU1 Mixed Use zoning of the subject site, for reasons provided within the applicant’s written request, which I also adopt.

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

16. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant’s amended DA is accompanied by an updated BASIX certificate (number 1731561M prepared by Ecoplus Consultants Pty Ltd dated 21 December 2023) which is consistent with the amended DA.

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

17. Clause 30(2) of the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) requires that development consent must not be granted if the proposed development does not demonstrate that adequate regard has been given to the design quality principles. Section 29 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) requires that development applications which relate to residential apartments must be accompanied by a statement by a suitably qualified designer; and

1. The amended DA is accompanied by a statement confirming that a qualified designer designed or directed the design of the development and explains how the design quality principles and the objectives in Parts 3 and 4 of the Apartment Design Guide have been achieved.

2. The parties submit that the amended DA therefore complies with the requirements under the EP&A Regulation in relation to design and BASIX.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) relates to ensuring the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained for existing and future generations. The Biodiversity and Conservation SEPP applies to the site as it is located within the Sydney Harbour Catchment; and

1. The parties submit that the provisions of ss 6.6(1), 6.6(2) and 6.7 of the Biodiversity and Conservation SEPP are satisfied given that the site is of sufficient distance from the Parramatta River and meets the relevant assessment criteria for approval; and

2. The site is not mapped as flood liable land or a “flood planning area” under the LEP’s Flood Planning Map, and as a consequence section 6.8(2) of the Biodiversity SEPP does not apply; and

3. Given the distance of the site from the Parramatta River it is unlikely that the proposed development will have any adverse impacts of the development on the recreational land uses of Parramatta River as concluded in the Letter prepared by Plan Urban. The parties advise that these matters have been taken into account as part of the assessment of the amended DA as required under s 6.9(1) of the Biodiversity and Conservation SEPP; and

4. Given the nature of the proposed development the parties do not consider that it will have an adverse environmental impact on an adjacent or downstream local government area. Section 6(10) of the Biodiversity SEPP is therefore not activated in the circumstances of this development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the amended DA. The site has frontage to a classified road (Ramsay Road), and therefore Part 2.3 (which relates to development controls for development in or adjacent to road corridors or road reservations), and ss 2.118, 2.119, 2.120 and 2.122 of the Transport and Infrastructure SEPP apply to the proposed development.

20. The parties submitted that the amended DA meets the requirements of the Transport and Infrastructure SEPP as follows:

1. Current vehicular access is from Ramsay Road, which is proposed to be permanently closed and restored to kerb and gutter. The traffic statement prepared by CJP Engineers dated 20 October 2023, notes that the relevant requirements of Transport for NSW (TfNSW) and the Transport and Infrastructure SEPP have been met and the parties agree that remaining issues can be addressed by way of conditions of consent; and

2. In accordance with clause 2.120 of the Transport and Infrastructure SEPP, an amended Acoustic Assessment has been prepared by Acoustic Dynamics dated 15 September 2023 which confirms that appropriate measures will be taken to ensure compliance with noise levels contained within this clause; and

3. Pursuant to clause 2.122 of the Transport and Infrastructure SEPP, the proposal is a traffic generating development. TfNSW was notified and refused concurrence to the original DA based on stormwater management issues, which have now been resolved, and incorporated into the conditions of consent; and

4. The Applicant has provided a Traffic and Parking Assessment Report to the Respondent which supplements the original report provided with the DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Clause 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

22. The parties advise that the Environmental Site Assessment prepared by Martens & Associates Pty Ltd (Martens) dated October 2022 concludes that the site presents a risk of contamination. A Detailed Site Investigation was carried out by Martens and dated 8 September 2023, which recommends that remediation be carried out and in response, Martens prepared a Remediation Action Plan dated 24 August 2023. The parties submit that Council’s Environmental Health Officer is satisfied that the site can be made suitable for the proposed development with appropriate conditions of consent, and subject to the implementation of the remediation as recommended:

1. the Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

City of Canada Bay Development Control Plan 2023

23. The parties advise that the provisions of the City of Canada Bay Development Control Plan (the DCP) that are of relevance have been taken into account in preparing the amended DA; and

1. The parties agree that the revised plans demonstrate a satisfactory built form outcome when measured against the applicable zoning objectives and the DCP.

Conclusion

24. Having considered the advice of the parties provided above at [15-23], I am satisfied that:

1. the applicants’ amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

25. Further, 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.

26. As the parties’ decision is a decision 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.

27. The Court notes:

1. that Canada Bay Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA2022/0316 made on 21 December 2023 to rely on the documents specified below:

#	Document	Date
1.	Updated Statement of Environmental Effects prepared by Plan Urban Services Pty Ltd	9 November 2023
2.	Updated Clause 4.6 Written Request – Height of Building prepared by Plan Urban Services Pty Ltd	8 November 2023
3.	Updated Clause 4.6 Report - Dwelling Mix, prepared by Plan Urban Services Pty Ltd	20 November 2023
4.	View Study, prepared by Squillace	•
5.	Letter from Plan Urban Services re Section 6.6 and 6.9 of State Environmental Planning Policy (Biodiversity and Conservation)	14 December 2023
6.	Waste Management Plan, prepared by MRA Consulting Group	20 October 2023
7.	Environmental Noise Impact Assessment, prepared by Acoustic Dynamics	15 September 2023
8.	Construction Noise & Vibration Management Plan prepared by Acoustic Dynamics	15 September 2023
9.	Detailed Environmental Site Investigation prepared by Martens & Associates Pty Ltd	8 September 2023
10.	Site Contamination Specialist Review of Detailed Environmental Site Investigation prepared by Old Maple Pty Ltd	13 September 2023
11.	Remedial Action Plan prepared by Martens & Associates Pty Ltd	12 September 2023
12.	Letter from Addisons to K2 Five Dock Limited re Easement over 52 – 56 Ramsay Road, Five Dock NSW 2046	11 October 2023
13.	Overland Flow Assessment prepared by Martens & Associates Pty Ltd	20 October 2023
14.	Updated Traffic Report, prepared by CJP Consulting Engineers	20 October 2023
15.	Letter re Service Vehicle Dimensions prepared by CJP Consulting Engineers	21 November 2023
16.	Proposed Concept Stormwater Plan (Up to Rev G) prepared by Martens & Associates Pty Ltd • PS01 - A000 – Cover Sheet (Rev G) – 20 October 2023 • PS01 - A050 – Development Overview Plan (Rev D) – 20 October 2023 • PS01 - B300 – Erosion & Sediment Control Plan (Rev D) – 20 October 2023 • PS01 - B310 – Erosion & Sediment Control Details (Rev B) – 6 October 2023 • PS01 – D100 – Roadworks Plan (Rev C) – 8 September 2023 • PS01 – D200 – Longitudinal Sections (Sheet 01) (Rev C) – 8 September 2023 • PS01 – D500 – Ramsay Road Footway Cross Sections (Rev A) – 6 October 2022 • PS01 – E100 – Drainage Plan (Ground Floor) (Rev F) – 20 October 2023 • PS01 – E101– Drainage Plan (Basement 1) (Rev A) – 8 September 2023 • PS01 – E102– Drainage Plan (Basement 2) (Rev A) – 8 September 2023 • PS01 – E200– Drainage Details (Sheet 1) (Rev D) – 8 September 2023 • PS01 – E201 – Drainage Details (Sheet 2) (Rev A) – 8 September 2023 • PS01 – E300 – Drainage Longitudinal Sections (Rev D) – 20 October 2023 • PS01 – E600 – Onsite Detention Catchment Plans, Model and Results (Rev B) – 20 October 2023 • PS01 – E700 – Water Quality Catchment Plan, Model and Results (Rev C) – 8 September 2023	Various Dates
17.	Swept Path Diagrams (22134-D003-V1) prepared by CJP Consulting Engineers • Sheet 1 – Ground Floor • Sheet 2 – Ground Floor • Sheet 3 – Ground Floor • Sheet 4 – Basement 1 • Sheet 5 – Basement 1 • Sheet 6 – Basement 2 • Sheet 7 – Basement 2	29 August 2023
18.	Landscape Plans, prepared by Ground Ink Landscape Artists • Cover Page • Document Information • Site Context • Existing Tree Plan • Landscape Plan – Ground Floor • Landscape Plan – First Floor • Landscape Plan – Second Floor • Landscape Plan – Third Floor • Landscape Plan – Fourth Floor • Landscape Sections • Planting Palette • Landscape Details	8 November 2023
19.	Architectural Plans (Up to Rev L), prepared by Squillace • DA-001 – Cover Sheet, Drawing List, Site Location Plan (Rev K) • DA-010 –Site Analysis Plan (Rev F) • DA-011 –Site Plan (Rev F) • DA-030 – Demolition Plan (Rev F) • DA-098 – Floor Plan Basement Level 2 (Rev L) • DA-099 – Floor Plan Basement Level 1 (Rev K) • DA-100 – Floor Plan Ground Level (Rev L) • DA-101 – Floor Plan Level 1 (Rev L) • DA-102 – Floor Plan Level 2 (Rev K) • DA-103 – Floor Plan Level 3 (Rev K) • DA-104 – Floor Plan Level 4 (Rev K) • DA-105 – Roof Plan (Rev K) • DA-201 – Elevation – West (Ramsay RD) (Rev I) • DA-202 – Elevation – North (Cashman Lane) (Rev H) • DA-203 – Elevation – East (Rev F) • DA-204 – Elevation – South (Rev G) • DA-252 – Streetscape Sheet 1 (Rev G) • DA-301 – Sections Sheet 1 (Rev E) • DA-303 – Privacy Sections - Courtyard (Rev D) • DA-304 – Privacy Sections – Rear Boundary (Rev C) • DA-350 – Driveway Ramp Section (Rev C) • DA-431 – Sun’s Eye View Sheet 1 (Rev H) • DA-432 – Sun’s Eye View Sheet 2 (Rev H) • DA-433 – Sun’s Eye View Sheet 3 (Rev C) • DA-434 – Sun’s Eye View Sheet 4 (Rev C) • DA-435 – Sun’s Eye View Sheet 5 (Rev C) • DA-501 – Gross Floor Area Calculations Sheet 1 (Rev I) • DA-502 – Gross Floor Area Calculations Sheet 2 (Rev I) • DA-531 – Gross Floor Area Calculations Sheet 2 (Rev G) • DA-601 – Solar Access Plans (Rev G) • DA-602 – Cross Ventilation Plans (Rev G)	21 November 2023
20.	BASIX Certificate number 1731561M prepared by Ecoplus Consultants Pty Ltd	21 December 2023

2. The amended DA was filed with the Court on 21 December 2023.

28. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, in the amount of $12,500, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. The request pursuant to cl 4.6 of the LEP to vary the development standard for height contained within cl 4.3 thereof, as prepared by Plan Urban dated 8 November 2023, is upheld.

4. The request pursuant to cl 4.6 of the LEP to vary the development standard for mix of dwellings in mixed use development contained within cl 6.11 thereof, as prepared by Plan Urban dated 20 November 2023, is upheld.

5. Development consent is granted to development application No. DA2022/0316 as amended, for the demolition of existing structures and the construction of a new shop top housing development containing two basement levels, ground level commercial tenancies, four levels of residential apartments and related landscaping on land legally known as Lots A, B and C, DP 381858 at 52 – 56 Ramsay Road, Five Dock, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 01 March 2024