Lateral Estate Pty Ltd v Council of the City of Sydney

[2020] NSWLEC 1381

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lateral Estate Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1381

Hearing dates:

Conciliation conference on 16 June 2020 and 20 July 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

Refer to orders at [52] below

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing consent – residential apartment development – conciliation conference – agreement between the parties

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2007

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality in Residential Apartment Development

Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

City of Sydney Council, Sydney Employment Lands Strategy 2014-2019

Green Square Town Centre Development Control Plan 2012

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

New South Wales Family and Community Services, NSW Affordable Housing Ministerial Guidelines, (2017-2018)

Category:

Principal judgment

Parties:

Lateral Estate Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
City of Sydney Council (Respondent)

File Number(s):

2019/327103

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Council of the City of Sydney (the Respondent) of Development Application DA998/2019 (the application) for the alterations and additions to the development approved by development consent D/2014/1757 at 501-509 Botany Road and 511-515 Botany Road, Zetland.

2. The application flows from a history of development approvals originating in a competitive design process, pursuant to subcl 6.9(7) of the Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013 in respect of a number of development sites identified within the Green Square Town Centre Development Control Plan 2012 (GSTC DCP) that resulted in Development Applications (D/2013/1947) and (D/2014/1757) for which an uplift of an additional in floor space ratio (FSR) was conferred.

3. It is helpful at this stage to note that the development approvals were prepared in respect of the following lots:

• Lot 2 in DP505350 (otherwise known as No 501 Botany Road, Zetland).

• Lot 11 in DP 610938 (otherwise known as No 505-509 Botany Road, Zetland).

• Lot 12 in DP 610938 (otherwise known as No 511-515 Botany Road, Zetland).

4. The extent of the alterations and additions comprising the development the subject of the development application are as follows:

• Two additional storeys (Botany Road)

• One additional storey (Hinchcliffe Street) to Building A

• One additional storey to Building B (Botany Road)

• 10 additional apartments

• 28 apartments allocated for affordable housing

• Internal and external changes

• Increase in retail and commercial GFA and

• Addition of wintergardens fronting Botany Road.

5. On 20 November 2019, 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 listed for 16 June 2020.

6. It is relevant to record here that the matter was listed for conciliation before the Court’s COVID-19 Pandemic Arrangements Policy took effect on 23 March 2020. Consistent with the Court’s approach to avoid in-person appearances, no onsite view was set down and the parties consented to the conciliation being undertaken via MS Teams at which the parties reached in-principle agreement as to the terms of an agreement that would be acceptable to the parties. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared.

7. On 20 July 2020, 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.

8. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

9. 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

• Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013 (GSTC LEP)

• State Environmental Planning Policy No 65—Design Quality in Residential Apartment Development (SEPP 65)

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

• State Environmental Planning Policy (Affordable Rental Housing) 2007 (Affordable Housing SEPP)

• State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)

11. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons set out in the judgment that follows.

12. The site is within the B4 Mixed Use zone as identified in the GSTC LEP. Mixed use development is a permissible use with consent, and in which the objectives are in the following terms:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To ensure uses support the viability of centres.

13. The proposed development exceeds the maximum permissible height of buildings set out in cl 4.3 of the GSTC LEP, and the Applicant relies upon a written request prepared by Planning Lab, dated 29 June 2020 to justify the contravention of the development standard pursuant to cl 4.6 of the GSTC LEP.

14. The request to vary the Building Height development standard relates to the upper two storeys of Building A, and the upper storey of Building B with building heights to the uppermost point of the building as follows:

• Building A lift overrun RL 56.60 (Figure 1), or an exceedance of 4.4m.

• Building B lift overrun – RL 49.20 (Figure 2), or an exceedance of 2m.

15. In considering the written request to permit a contravention of the height of buildings development standard, I note the objectives of the development standard are in the following terms:

4.3 Height of Buildings

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

(a)  to ensure acceptable height transitions between new development and heritage items and buildings in heritage conservation areas,

(b)  to ensure the sharing of views,

(c)  to ensure acceptable height transitions from the Green Square Town Centre to adjoining areas,

(d)  to ensure the amenity of the public domain by restricting taller buildings to only part of a site,

(e)  to ensure the built form contributes to the physical definition of the street network and public spaces.

16. I am satisfied that the written request adequately addresses the matters required to be demonstrated by subcl 4.6(3)(a) of the GSTC LEP in respect of the height of buildings for the following reasons:

1. Firstly, compliance with the building height development standard is unnecessary and unreasonable as the objectives of the development standard are achieved notwithstanding non-compliance with the standard, for the reasons that follow:

1. the buildings continue to step down in height from north to south, comply with the relevant building separation objectives, and so are contextually appropriate, and do not impose additional impacts on adjoining properties from overshadowing, loss of privacy or loss of view.

2. the height is appropriate given the range of taller buildings in the immediate vicinity of the building along Botany Road and surrounds.

3. despite the height exceedance, the proposal complies with the maximum FSR that is allowable on the overall site when the FSR bonuses conferred by subcl 6.9(7) of the GSTC LEP, and the Affordable Housing SEPP, are applied, and for which a cl 4.6 request for variation of the FSR control has been prepared and is considered further at [20]-[35].

2. Secondly, strict compliance with the height standard will mean that the proposed affordable housing apartments will not proceed and this outcome would thwart or undermine a number of statutory planning goals including:

1. “to promote the delivery and maintenance of affordable housing”, (subs 1.3(d) of the EPA Act)

2. “to facilitate the effective delivery of new affordable rental housing by providing incentives by way of … floor space ratio bonuses …” (subcl 3(b) of the Affordable Housing SEPP)

3. “to facilitate an expanded role for not-for-profit-providers of affordable rental housing” (subcl 3(e) of the Affordable Housing SEPP)

4. “to support local business centres by providing affordable rental housing for workers close to places of work” (subcl 3(f) of the Affordable Housing SEPP)

5. “to support housing affordability” (cl 2(3)(g) of the SEPP 65)

3. I am satisfied that the achieving of this stepped built form as depicted in Figure 3 of the written request and re-produced below, without adverse impacts on the amenity of adjoining properties, to be the result of acceptable height transitions and the limiting of taller buildings to only part of the site in a manner that defines the street network and, by virtue of the central void, assists to define public spaces.

17. Next, I am satisfied that there are sufficient environmental planning grounds to justify contravening the development standard for the reasons that follow:

• The contravention of the height control by the proposal does not give rise to any adverse environmental effect of significance that would cause concern. In particular, there is no unacceptable impact on the existing quantity of sunlight to the neighbouring dwellings at 511 Botany Road or to the windows and private open spaces for dwellings on Hansard Street.

• The proposed development achieves the desired stepping down of building heights from north to south as reflected in the Height of Buildings Map at cl 4.3 of the GSTC LEP, and with appropriate height transitions between adjoining sites.

• The proposal will result in a development that maintains the design integrity of the successful Architectural Design Competition according to the Design Integrity Assessment (DIA).

• The exceedances are in part to provide lift access and amenities servicing a rooftop communal open space which contributes to the amenity of the development.

• The proposed development is sited on the allotment within the prescribed setbacks of the boundaries and presents as two forms which minimises bulk. Furthermore, the non-complying elements of Buildings A and B are setback from the street wall to Botany Road and Hinchcliffe Street. The exceedances will be recessive where they can be seen from Botany Road and, to Hinchcliffe Street, are either integrated with the design in comparison to the approved DA, or will not be visible, in the case of Building B.

• Overall, the non-complying elements of Building A and B are better integrated into the streetscape and urban fabric, as would be experienced by a pedestrian on the street, when compared to the approved DA.

• Finally, it is not unreasonable that the conferring of additional FSR available under both the GSTC LEP and the Affordable Housing SEPP may result in an exceedance of the building height control because height controls and FSR provisions are usually in harmony with each other and do not generally take into account the potential for bonuses under State environmental planning policies.

18. For the reasons set out at [16]-[17], I am satisfied that the written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the GSTC LEP, pursuant to subcl 4.6(4)(a)(i) of the GSTC LEP. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height standard as set out at [15], and with the zone objectives, at [12], by virtue of the mixed use nature of the proposed development, and the location and street frontage afforded to the retail uses proposed on the site.

19. Finally, while the concurrence of the Secretary has not been obtained in this matter, the Court has the power under subcl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to subs 39(2) of the LEC Act. Nevertheless, I have considered the matters in subcl 4.6(5) of the GSTC LEP and am satisfied that concurrence can be assumed.

Contravention of the FSR development standard is exceeded

20. For the reasons set out in the clause 4.6 request prepared prior to the conciliation conference, the Applicant considers the proposed development to comply with the applicable FSR standard for the building on the site of 2.86:1 in accordance with subcl 4.4(2) of the GSTC LEP by providing an FSR of 2.79:1.

21. However, in the event that the reasons advanced by the Applicant for this compliance are in error, the Applicant relies upon a written request prepared by Planning Lab, dated 7 May 2020 to justify the contravention of the development standard pursuant to cl 4.6 of the GSTC LEP.

22. The request seeks to justify the exceedance of the FSR development standard on the basis of an FSR calculation originally prepared by the Respondent in the Statement of Facts and Contentions filed with the Court which is expressed as 2.722:1, and so results in an exceedance of 832.07m² or 2.5%.

23. The objectives of the FSR standard, at cl 4.4 of the GSTC LEP, are in the following terms:

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

(a)  to provide sufficient floor space to meet the anticipated development needs for the foreseeable future,

(b)  to regulate the density of development, built form and land use intensity and to control the generation of vehicular and pedestrian traffic,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d)  to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

24. The written request states that the objectives of the FSR standard in the GSTC LEP are achieved in the following ways:

1. In respect of objective (a), sufficient floor space is provided to meet the anticipated development needs for the foreseeable future by considering the capacity for all of the lots comprising the site to contribute to affordable rental housing and enjoy the benefit of the bonus FSR conferred on it by the Affordable Housing SEPP.

2. The FSR of the development on Lot 12, which is already the subject of an existing consent, does not provide affordable rental housing and so does not enjoy the benefit of bonus FSR. The result is a shortfall of potential FSR, which the written request essentially identifies as a potential offset to the exceedance sought on the remaining lots.

3. In respect of objective (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicular and pedestrian traffic, the written request relies on the DIA that is required for development that has been the subject of a Competitive Design process.

4. The effect of the DIA is that the alterations and additions represent a massing and visual appearance, being like terms for density and built form, that is equivalent to the design excellence demonstrated in the original proposal that was deemed to demonstrate ‘design excellence’.

5. That said, part of the exceedance of FSR is attributable to the enclosure of balconies on some levels for use as wintergardens, which are also considered in the DIA to be equivalent to the design excellence demonstrated in the original proposal.

6. Amendments to the proposed development reduce the number of apartments from 141 to 133, resulting in reduced impacts on traffic generated. Relevantly, no additional parking results.

7. In respect of objective (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, and as a consequence of the reduced number of apartments, the impact on traffic, parking and access is said to be negligible.

8. In respect of objective (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality, the written request notes that the Green Square Town Centre is undergoing urban renewal with substantial mixed use and public infrastructure development underway in the vicinity of the site.

9. Furthermore, the stepped form of the development in its context is consistent with the desired urban form and does not result in any further adverse impacts on the amenity of surrounding properties as shown in the Design Report prepared by Mr Peter Smith dated August 2019 and summarised in the written request at p 26.

25. Relatedly, the written request states that the exceedance of the FSR is also acceptable in respect of cl 13 of the Affordable Housing SEPP dealing with floor space ratios, as the objectives set out at cl 3 are achieved for the reasons summarised below:

1. In respect of objective (a) to provide a consistent planning regime for the provision of affordable rental housing, the proposed development adopts the mathematical formula set out in cl 13 of the Affordable Housing SEPP for the development the subject of the development application, which is reasonable in the context of the history of approvals for the site and what may be regarded as the inter-dependency of the sites in the particular circumstances of the proposed development.

2. In respect of objective (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards (and objective (c) and (d) similarly), the written request considers the benefit of the FSR bonus is appropriately utilised for the provision of affordable housing that would not otherwise be provided in the absence of consent being granted.

3. In respect of objective (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, the written request notes that the affordable rental housing apartments are to be managed by a registered community housing provider.

4. In respect of objective (f) to support local business centres by providing affordable rental housing for workers close to places of work, the proposed development is said to be within close proximity, or be accessible to, employment lands identified within the Sydney Employment Lands Strategy 2014-2019 and be accessible to the entirety of the Sydney CBD and Sydney airport within 30 minutes.

1. In respect of objective (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation, the written request sets out the NSW Affordable Housing Ministerial Guidelines with which the registered community housing organisation can be expected to comply.

26. The written request also considers the objective of cl 6.9 of the GSTC LEP as the provisions of design excellence are the grounds, at subcl 6.9(7), on which bonus FSR is conferred, as follows:

(7) If the design of a new building, or an external alteration to an existing building, on land is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence, it may grant development consent to the erection of the new building, or the alteration to the existing building, with a floor space ratio that exceeds the maximum floor space ratio shown for the land on the Floor Space Ratio Map by up to 10%.

1. The objective, at subcl 6.9(1) is in the following terms:

(1)  The objective of this clause is to deliver the highest standard of architectural and urban landscape design.

2. The proposed development is for alterations and additions to a proposal that was deemed to exhibit ‘design excellence’ through a competitive design process. The original jury has subsequently advised that the alterations and additions are equivalent to the design excellence of the original proposal.

27. Finally, the objectives of the B4 Mixed Use zone, set out at [12], are also considered by the written request to be achieved by the proposed development for the reasons that follow:

1. The proposal increases the GFA for the purposes of residential dwelling and retail uses, as well as introducing new commercial floor space to Level 1 of Building A to provide a development of mixed uses that are compatible.

2. The site is located approximately 200m from the Green Square Train Station, and is in close proximity to essential services, residential housing and employment lands. The uses on the site, and the ease of access support the viability of the Green Square Town Centre.

28. The written request states that compliance with the development standard is unreasonable or unnecessary as the objectives of the development standard are achieved notwithstanding non-compliance with the standard, as set out at [24]-[26].

29. The Applicant also considers the underlying objective or purpose of the standard would be undermined, defeated or thwarted if compliance was required with the consequence that compliance is unreasonable for the reasons set out at p 33 of the written request.

30. Finally, the written request also seeks to demonstrate that the burden placed on the community by the refusal to grant consent to the proposal by reason of failure to strictly comply with the standard would be disproportionate to the adverse consequences attributable to the exceedance.

31. However, only one of the tests set out by Preston J in Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 at [22] are required to demonstrate that compliance with the development standard is unnecessary or unreasonable. I am satisfied that the objectives of the development standard are achieved notwithstanding non-compliance with the standard, as set out at [24]-[26].

32. I also accept, and am satisfied, that the massing and built form of the proposal, which is considered equivalent in terms of its ‘design excellence’, is compatible with the desired character of the Green Square Town Centre given the stepped form and setbacks achieved in the realisation of affordable rental housing in an area that is accessible and so achieves the objectives of the standard at cl 4.4 and subcl 6.9(7) of the GSTC LEP, and the Affordable Housing SEPP.

33. Next the Applicant considers there to be sufficient environmental planning grounds to justify the contravention of the standard given the absence of adverse impact on amenity to surrounding properties, and the provision of affordable rental housing in an accessible location such as Green Square Town Centre. Furthermore, the enclosure of balconies at Level 5-9 to create wintergardens is said to provide an appropriate climatic and acoustic environment for occupants, in support of which the written request cites the Acoustic Review prepared by Acoustic Logic dated 2 August 2019.

34. I accept that the proposed development does not impose adverse environmental impacts on the area, and is located in an area likely to benefit from affordable rental housing in close proximity to public transport and employment lands, and I am satisfied, on the basis of the acoustic advice prepared by Acoustic Logic dated 11 June 2020, that the enclosure of the wintergardens are an appropriate response to the exposed setting, and satisfy the requirements of SEPP Infrastructure, albeit with the effect of additional FSR.

35. Given the minor nature of the exceedance, I am satisfied that the concurrence of the Secretary may be assumed in accordance with subcl 4.6(5) of the GSTC LEP, and I am satisfied that the written request seeking to justify the contravention of the FSR standard is deserving and should be upheld.

Acid Sulfate Soils

36. The Acid Sulfate Soil Management Plan prepared by Environmental Investigations Australia dated 26 June 2020, confirms that the site falls within a category classified as Class 5 acid sulfate soils and sets out management strategies for monitoring, assessment and the like. I am satisfied that the provisions of cl 6.1 of the GSTC LEP are therefore met.

Flood planning

37. On the basis of the Flood Planning statement prepared by Stantec dated 4 June 2020 in accordance with the City of Sydney Council’s Interim Floodplain Management Policy, I am satisfied that the requirements of subcl 6.2(3) of the GSTC LEP have been met.

Active Street frontages

38. On the basis of the amended plans, and the statement at p 50 of the Statement of Environmental Effects prepared by Planning Lab dated 27 August 2019, I am satisfied that the proposed development achieves the requirement of subcl 6.6(3) of the GSTC LEP to have an active street frontage after its erection.

Design Excellence

39. Subclause 6.9(3) of the GSTC LEP states that consent must not be granted unless the consent authority, or the Court on appeal, is satisfied that the proposed development exhibits design excellence.

40. On the basis of the statement set out at p 9 of the Design Integrity Assessment dated 15 August 2019 and signed by all members of the jury, I am satisfied that the proposal exhibits design excellence.

Essential services

41. Clause 6.10 of the GSTC LEP requires the consent authority, or the Court on appeal, to be satisfied that certain essential services are available.

42. On the basis of the Voluntary Planning Agreement executed between the parties and provided to me, I am satisfied that arrangements have been made for certain essential services to be available to the site and particularly those nominated in Schedule 3, Contributions Schedule.

State Environmental Planning Policy No65—Design Quality of Residential Apartment Development

43. As the proposed development is for residential apartment development, the provisions of SEPP 65 apply.

44. Where an application relates to residential apartment development, subcl 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 subcl 50(1AB), which include attestations in relation to subcll 28(2)(b) and (c). I am satisfied that the statement provided by Peter Smith (Reg No. 7024), dated August 2019 is in a complying form.

State Environmental Planning Policy No 55 – Remediation of Land

45. In relation to cl 7 of the SEPP 55, I am satisfied on the basis of the following reports that the site is contaminated:

• Environmental Site Assessment Report, prepared by Environmental Investigations Australia dated December 2009.

• Additional Environmental Site Assessment, prepared by Environmental Investigations Australia dated 6 March 2014.

• Interim Audit Advice prepared by Mr Tim Chambers dated 10 November 2014.

46. However, on the basis of the following reports, I am also satisfied that the site will be suitable for the purposes for which development is proposed to be carried out in accordance with cl 7 of SEPP 55:

• Remediation Action Plan, prepared by Environmental Investigations, dated 12 March 2014.

• Interim Audit Advice prepared by Mr Tim Chambers dated 10 November 2014.

• Site Suitability letter prepared by Environmental Investigations Australia dated 24 June 2020.

State Environmental Planning Policy (Infrastructure) 2007

47. The proposed development fronts Botany Road, a classified road as identified by the SEPP Infrastructure. While the application does not seek approval for additional parking, I am satisfied on the basis of the written advice prepared by Ason Group dated 12 August 2019, in respect of those matters set out at subcll 101(2)(a) and (b) of the SEPP Infrastructure. In particular, I note that the proposed development provides vehicular access to the site from a road other than Botany Road.

48. In respect of subcl 101(2)(c) of the SEPP Infrastructure, I am satisfied that the proposed development is appropriately located and designed, and includes measures to ameliorate potential traffic noise or vehicle emissions arising from the adjacent classified road. In particular, I note the Acoustic Review prepared by Acoustic Logic dated 2 August 2019 which confirms the results of a noise impact assessment.

49. On the basis of the same report, I am also satisfied that the requirements of cl 102 of the SEPP Infrastructure are achieved by reference to the acoustic levels when measured inside the residential accommodation comprising the proposed development. I am also satisfied that the recommendations and conclusions contained in the Traffic Noise Assessment prepared by Acoustic Logic dated 3 July 2020 will, if implemented, achieve the requirements of cl 102 of SEPP Infrastructure.

50. 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.

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

52. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely on:

1. The drawings referred to in Condition 1 of Annexure A to this agreement;

2. Clause 4.6 – Justification for Contravention of Development Standard (Height) (29 June 2020) prepared by Planning Lab;

3. Clause 4.6 – Justification for Contravention of Development Standard (FSR) (7 May 2020) prepared by Planning Lab;

4. Updated Estimated Waste/Recycling Breakdown Report prepared by Aussie Skips (undated);

5. Operational Waste Management Plan, Revisions E, prepared by Elephants Foot Recycling Solutions dated 4 June 2020;

6. Flood Planning Report prepared by Stantec dated 4 June 2020;

7. Natural Ventilation Design Review of Apartment B4.08 prepared by RWDI dated 7 April 2020;

8. Acid Sulfate Soils Management Plan prepared by EI Australia dated 26 June 2020;

9. Traffic Noise Assessment prepared by Acoustic Logic dated 3 July 2020;

10. Letter from EI Australia to Lateral Estate Pty Ltd outlining Site Suitability dated 24 June 2020; and

11. Thermal Comfort and BASIX Assessment, prepared by Efficient Living Pty Ltd dated 7 July 2020.

2. The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,000 to be paid within 28 days of the date of this order.

3. The Applicant’s written request under clause 4.6 of the Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013 (the LEP) seeking a variation of the development control for height of buildings set out in clause 4.3(2) of the Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013 is upheld.

4. The Applicant’s written request under Clause 4.6 of the LEP seeking variation of the development control for floor space ratio set out in clause 4.4(2) of the LEP is upheld.

5. The appeal is upheld.

6. Development Application DA2019/998 for alterations and additions to the development approved by development consent (D/2014/1757) including:

1. Two additional storeys (Botany Road);

2. One additional storey (Hinchcliffe Street) to building A;

3. One additional storey to building B (Botany Road);

4. 10 additional apartments;

5. 28 apartments allocated for affordable housing;

6. Internal and external changes;

7. Increase in retail and commercial GFA; and

8. Addition of wintergardens fronting Botany Road,

is approved subject to the conditions set out in Annexure A to this agreement.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (318747, pdf)

Plans (11737303, pdf)

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Decision last updated: 20 August 2020