Medium Neutral Citation:; GTB Hurstville Pty Ltd v Georges River Council

[2024] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation:

GTB Hurstville Pty Ltd v Georges River Council [2024] NSWLEC 1210

Hearing dates:

Conciliation conference 22 March 2024

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA/2022/0061 for the demolition of the existing structures and construction of a 6-18 storey mixed use development across 5 buildings containing 349 residential apartments, retail and office floor space above 3 basement levels containing 453 parking spaces and tree removal at 9 Gloucester Road, Hurstville subject to conditions annexed here to and marked Annexure A.

(3) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $35,000, which is to be paid within 28 days of orders being made approving the application.

Catchwords:

DEVELOPMENT APPLICATION – new mixed use development across five new buildings – amended plans – agreement between the parties – orders made.

Legislation Cited:

Airports Act 1996, s 183

Environmental Planning and Assessment Act 1979, ss 4.5, 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Airports (Protection of Airspace) Regulations 1996, reg 7

Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015

Environmental Planning and Assessment Regulation 2000, Sch 1, cll 4.9, 50

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Georges River Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 4.6, 6.2, 6.3, 6.7, 6.8, 6.9, 6.10, 6.11, 6.13, Sch 1, cl 14

State Environmental Planning Policy – Building Sustainability Index: BASIX 2004, ss 6, 8

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, 11, Pt 11.2, ss 11.6 11.7

State Environmental Planning Policy (Housing) 2021, Sch 7A, Ch 4

State Environmental Planning Policy (Infrastructure) 2007, ss 2.210, 2.122, 2.48

State Environmental Planning Policy (Planning Systems) 2021, Sch 6, Ch 2, s 2.19

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

State Environmental Planning Policy (State and Regional Development) 2011

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 119

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy Amendment (Housing) 2023

State Environmental Planning Policy Amendment (Water Catchments) 2022, Ch 6, s 6.65

State Environmental Planning Policy No.55 - Remediation of Land

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

Texts Cited:

Building Code of Australia

Hurstville Development Control Plan No 2 2021

NSW Department of Planning and Environment, Planning Circular PS 21-018: Development near rail corridors and busy roads – interim guideline, December 2021

NSW Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

GTB Hurstville Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
K Marginson (Solicitor) (Applicant)
S Wilson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/00189807

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of Development Application DA/2022/0061. The development application, as amended, seeks consent for the demolition of the existing structures and construction of a 6-18 storey mixed use development across 5 buildings containing 349 residential apartments, retail and office floor space above 3 basement levels containing 453 parking spaces and tree removal at 9 Gloucester Road, Hurstville (Lot 30 DP 785238).

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 1 December 2023. The conciliation conference was adjourned to allow ongoing discussions between the parties, but the conciliation was ultimately terminated on 14 February 2024. The parties have continued without prejudice discussions and have reached an agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. The parties advised the Court of their agreement, and the proceedings were listed for a further conciliation conference on 22 March 2024. I presided over the further conciliation conference.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I am satisfied for the reasons that follow.

Environmental Planning and Assessment Regulation 2000

4. The development application was lodged on 24 February 2022. Pursuant to Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021, the former Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continues to apply. The development application was lodged with the consent of the owner of the land per cl 4.9 of the EPA Regulation.

State Environmental Planning Policy (Resilience and Hazards) 2021

5. The development application was lodged on 24 February 2022 under the State Environmental Planning Policy No.55 - Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Pursuant to clause 4.6 of the SEPP RH, a consent authority must not grant consent to a development unless it has considered whether the Site is contaminated, and if the land is contaminated, is satisfied that the Site is suitable in its contaminated site (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The site has been used for many years for residential and commercial purposes.

6. The development application is accompanied by a Preliminary Site Investigation (PSI) which revealed potential sources of contamination and concluded that there was a low to medium risk of contamination. The PSI also concludes that detailed site investigation and hazardous building materials survey take place.

7. A Detailed Site Investigation (DSI) was prepared and submitted with the development application. The DSI concluded that the site could be made suitable for the proposed use following remediation and recommended the preparation of a Remediation Action Plan, an Asbestos Management Plan and a hazardous materials survey to be undertaken on the existing buildings prior to demolition.

8. A Remediation Action Plan (RAP) concludes that the site will be rendered suitable for the proposed use subject to implementation of the RAP.

9. The annexed conditions of consent include conditions requiring compliance with the RAP, the completion of a hazardous materials survey and compliance with Australian Standards in relation to demolition work involving asbestos. On this basis I can be satisfied that contamination has been adequately considered and the site can be made suitable for the proposed use in accordance with cl 4.6 of SEPP RH.

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

10. The development application is for residential apartment development, shop top housing or mixed-use development with a residential component. The development application was lodged under State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development (SEPP 65). On 14 December 2023, SEPP 65 was repealed by the State Environmental Planning Policy Amendment (Housing) 2023. New provisions relating to the design of residential apartment development has been enacted in new Ch 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing). I note the repeal of SEPP 65 is not saved by the provision at Sch 7A(2) of the SEPP Housing, as the repeal was given effect by State Environmental Planning Policy Amendment (Housing) 2023, that does not contain a savings provision in the form that it appears in Sch 7A of the SEPP Housing.

11. Notwithstanding, cl 50(1A) of the EPA Regulation requires, if a development application that relates to a residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, that the application must be accompanied by a statement by a qualified designer. Further, at cl 50(1AB) the EPA Regulation provides that the statement by the qualified designer must, among other things, provide an explanation that verifies how the development addresses how the design quality principles are achieved and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved (see cl 50(1AB)(b)(i) and (ii)).

12. I am satisfied that the statement provided by Mr Stephen Cox (Reg No. 6391) dated 6 February 2024 is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the Apartment Design Guide.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. The development application was lodged under the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). On 1 March 2022, the Infrastructure SEPP was repealed, and its provisions were transferred to Ch 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). The following sections of SEPP TI apply:

1. Section 2.98 – Excavation in, above, below or adjacent to rail corridors.

1. The proposed development is adjacent to the railway line which is across Forest Road from the site. The development application seeks consent for excavation and construction for three levels of basement parking. The development application includes a geotechnical investigation which concludes that the site is suitable for the proposed development.

2. Pursuant to s 2.98(2) of SEPP TI, the consent authority is required to give written notice of the application to the rail authority for the rail corridor. Secondly the consent authority must take into consideration any response received within 21 days, and any guidelines issued by the Planning Secretary. In compliance with this section, written notice of the proposed development has been provided to TfNSW (Sydney Trains) and conditions of consent have been imposed in accordance with their response dated 20 December 2022. Further, a copy of relevant documents within the Amended Application were provided by the Respondent to TfNSW (Sydney Trains) on 19 February 2024 and no further response has been received.

2. Section 2.119 – Development with frontage to a classified road.

1. Pursuant to s 119(2) of SEPP TI the consent authority must not grant consent to development on land fronting the classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

2. The development application proposes vehicular access off Gloucester Road. Further, the development application includes traffic modelling and information that the parties agree, and I accept, demonstrates the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development.

3. Further, the development application was referred to Transport for NSW (RMS) who are satisfied with the traffic modelling and information prepared by the Applicant. The requirements of Transport for NSW (RMS) are incorporated in the annexed conditions of consent.

4. I have formed the opinion of satisfaction required by s 2.119 for the reasons that follow:

1. Vehicular access to the development is located on Gloucester Road and so from other than the classified road.

2. The Traffic Impact Assessment and other supporting documents prepared by JMT Consulting confirm that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the vehicular access proposed off Gloucester Road.

3. The Acoustic Assessment prepared by Acoustic Logic concludes that the potential traffic noise from the classified road can be ameliorated and that the internal noise limits prescribed in s 2.120(3) of the Infrastructure SEPP can be achieved, subject to recommendations in the report being adopted. Compliance with the Acoustic Assessment forms part of the annexed conditions.

3. Section 2.120 – Impact of road noise or vibration on non-road development.

1. Section 2.120 applies to the development application as it is residential accommodation.

2. Pursuant to s 2.120(2), the consent authority must take into consideration the document ‘Development near rail corridors and busy roads: interim guideline’ (the guideline) prepared by the NSW Department of Planning and Environment: Planning Circular PS 21-018.

3. Further, s 2.120(3) applies and mandates that the consent authority must not grant consent unless the stated acoustic criteria are met.

4. In determining the development application, I have reviewed the submitted acoustic assessment which includes an assessment against the guideline and assesses the acoustic compliance of the development against the requirement at s 2.120(3) of SEPP TI. The assessment concludes that by adopting the recommended construction requirements and mandating the inclusion of mechanical ventilation the proposed development will meet the required criteria.

5. The parties agree, and I accept I can be satisfied that the proposed development complies with s 2.120 as the proposed development is consistent with the guideline, and that appropriate acoustic amenity will be achieved for the proposed development.

4. Section 2.122 – Traffic generating development

1. As the proposed development provides parking for greater than 200 motor vehicles and has greater than 2,000 square metres for shops s 2.122 applies. As required by subcll (2) and (4), the development application was referred to TfNSW during the assessment period and conditions of consent have been imposed in accordance with their response dated 28 March 2022. In determining the development application, I have taken into consideration the response from TfNSW and the accessibility of the site.

5. Section 2.48 – Determination of development applications -other development

1. The development application was referred to Ausgrid pursuant to s 2.48(2) of SEPP Infrastructure. The conditions requested by Ausgrid are incorporated into the annexed conditions of consent.

State Environmental Planning Policy (Planning Systems) 2021

14. The development application was lodged under the provisions of State Environmental Planning Policy (State and Regional Development) 2011 (State and Regional development SEPP). On 1 March 2022, the State and Regional Development SEPP was repealed, and its provisions were transferred to Chapter 2 of the State Environmental Planning Policy (Planning Systems) 2021 (Planning Systems SEPP).

15. The development application has a capital investment value in excess of $30 million and accordingly is declared to be ‘Regionally significant development’ pursuant to Sch 6 and s 2.19 of the Planning Systems SEPP.

16. Pursuant to s 4.5(b) of the EPA Act the consent authority is the Sydney South Planning Panel (SSPP).

17. The Respondent in this matter is, pursuant to s 8.15(4) of the EPA, subject to the control and direction of the consent authority for the development application, being the SSPP. The SSPP have instructed the Respondent to enter into the agreement.

State Environmental Planning Policy – Building Sustainability Index: BASIX 2004

18. Section 6 of the State Environmental Planning Policy – Building Sustainability Index: BASIX 2004 (SEPP BASIX) applies as the development is ‘BASIX affected development’. On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into force and repealed the BASIX SEPP. The development application is not captured by the savings and transitional provisions set out in s 4.2(1) and as such is not subject to the provisions of the Sustainable Buildings SEPP.

19. The Applicant has provided an amended BASIX Certificate number 1252504M_02 prepared by Greenview Consulting Pty Ltd dated 5 March 2024 for the amended development application, satisfying the requirement in Sch 1 of the EPA Regulation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. The Development Application was lodged under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). The Vegetation SEPP was repealed, and provisions were transferred into Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) which commenced on 1 March 2022.

21. Chapter 2 of SEPP BC details provisions regarding the preservation and management of vegetation in non-rural areas. As detailed at [1], the development application seeks consent for tree removal. The extent of tree removal and the feasibility of tree retention is addressed in an Arboricultural Impact Assessment Report prepared by Sturt Noble Arboriculture dated 4 December 2023. Further, the development application includes Landscape plans that correlate with the amended architectural plans.

22. The parties agree, and I accept, that the trees on the site do not comprise Koala Habitat Vegetation and removal will not trigger the biodiversity offset scheme. Accordingly, the removal of the trees is consistent with SEPP BC having regard to the tree species, integrity, level of significance and replacement planting as proposed in the landscape plans.

23. The Site is located within the Georges River Catchment and therefore former Ch 11 of the SEPP BC applies. Chapter 11 Georges Rivers Catchment of SEPP BC was previously known as Greater Metropolitan Regional Plan No. 2 - Georges River Catchment. On 21 October 2022, Ch 11 was repealed and consolidated into new Ch 6 by the State Environmental Planning Policy Amendment (Water Catchments) 2022 (SEPP WC). Section 6.65 of the new Ch 6 provides savings and transitional provision. Applying those provisions, the provisions of former Ch 11 of SEPP BC apply to the development application as it was lodged prior to the commencement of SEPP WC.

24. In determining the development application, I have taken into consideration the planning principles listed in Pt 11.2 and the matters set out in ss 11.6 and 11.7. Those matters include the likely effect of the proposed development on adjacent or downstream local government areas, the cumulative impact of the proposed development on the Georges River or its tributaries. The parties agree, and I accept, that none warrant the refusal of the development application.

Georges River Local Environmental Plan 2021

25. The site is located within the MU1 Mixed use zone pursuant to the Georges River Local Environmental Plan 2021 (LEP 2021). The proposed uses are permitted with consent in the zone. In determining the development application, I have considered the objectives of the zone which are:

•  To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

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

•  To allow residential development that contributes to the vitality of the centre and provides housing that meets the needs of the community.

•  To encourage the provision of community facilities and public infrastructure so that all residents have reasonable access to a range of facilities and services.

26. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021.

27. Clause 4.3 ‘Maximum Height’ refers to the height of buildings where maximum building height is shown on the Height of Buildings Map. The site is subject to a series of maximum height limits of 23, 30, 40, 55 and 60m.

1. The development application includes a variation to the applicable maximum height standard. The variations to these standards are summarised as follows:

Building	Height Control	Max Height proposed
A	60m	- screening 63.1m - lift overrun 64.85m
B	55m	- parapet 58.47m - screen 58.4m - lift overrun 62m
C	40m	- plant/screening 42.64m - parapet 42.23m - lift overrun 46m
D	30m	- shade structure 32.065m - parapet 33.315m - lift overrun 33.98m
E	23m	- parapet 26.73m - lift overrun 27.423m

2. The Applicant has prepared a written request seeking to vary the maximum height development standard. I have read the written request prepared Sutherland & Associates Planning and in accordance with cl 4.6 of LEP 2021, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021: Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827. I am satisfied that the development is consistent with the achievement of the objectives of the height standard for the reasons detailed in the written request.

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021). In particular, I am satisfied that the height variation arises in part from the site topography, the provision of floor to ceiling heights for the commercial component in accordance with requirements of the Building Code of Australia and fire regulations, and the provision of accessible roof top access.

3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3 of LEP 2021 and the objectives of the MU1 Mixed Use zone.

4. Pursuant to cl 4.6(5) of LEP 2021, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

5. I find that the states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breaches of the height controls.

28. Applying cl 4.4 ‘Floor space ratio’, a maximum floor space ratio (FSR) of 4:1 is permitted on the site. By reference to the architectural plans, I can be satisfied that the proposed development is compliant with the FSR control.

29. Clause 6.2 ‘Earthworks’ applies as the proposed development seeks consent for earthworks encompassing cut and fill across the site. As required, I have considered the matters listed at cl 6.2(3) of LEP 2021 as follows:

1. Clause 6.2(3)(a) – with reference to the Stormwater Plan prepared by BG & E dated 14 December 2023 I accept that the proposed development will not cause disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development.

2. Clause 6.2(3)(b) - with reference to the Geotechnical Report prepared by Douglas Partners, I accept that the proposed earthworks will facilitate the efficient use of the site with basement car parking and facilitate future residential uses on the site.

3. Clause 6.2(3)(c) – I accept the proposed fill to be excavated will be dealt with as required by the RAP.

4. Clause 6.2(3)(d) – I accept the agreement of the parties that the proposed development is not expected to result in an adverse impact on the amenity or structural integrity of adjoining properties.

5. Clause 6.2(3)(e) & (f) - excavated material will be disposed of at an appropriate off site facility and in accordance with the requirements of the RAP.

6. Clause 6.2(3)(g) - the site is not identified as a heritage item and has previously been a development. I accept therefore the likelihood of relics on the site is considered to be low.

7. Clause 6.2(3)(h) – I accept, on the basis of the Statement of Environmental Effects (SEE), the site is not significant in terms of its contribution to habitat nor is it environmentally sensitive.

8. Clause 6.2(3)(i) – I accept the agreed submission of the parties that the development application incorporates reasonable measures to avoid, minimise or mitigate the impacts of the development.

30. Pursuant to cl 6.3 ‘Stormwater Management’ the consent authority must be satisfied of the matters listed at sub cl (2). They are:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development’s reliance on mains water, groundwater or river water, and

(c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact, and

(d) is designed to minimise the impact on public drainage systems

31. By reference to the technical reports which form part of the development application, including stormwater management plans, the SEE and the landscape plans, I find that the proposed development the matters at cl 6.3(2) of LEP 2021 are satisfied.

32. Pursuant to cl 6.7 ‘Airspace Operations’, consent must not be granted to development where the clause applies unless consultation has occurred with the relevant Commonwealth body. The development application includes an Aeronautical Impact Assessment prepared by Landrum and Brown which confirms the proposed development does not infringe on the Obstacle Limitation Surface and Procedures for Air Navigation Services. Following referral, no objections were received to the development from Sydney Airport Corporation subject to conditions. Specifically, the imposition of a condition of consent requiring the submission of an application for future crane operation pursuant to s 183 of the Airports Act 1996 and reg 7 of the Airports (Protection of Airspace) Regulations 1996 prior to any construction at the site. I find that the proposed development satisfies cl 6.7 of LEP 2021.

33. Clause 6.8 ‘Development in areas subject to aircraft noise’ requires the consent authority to firstly consider whether proposed development will be affected by aircraft noise and secondly whether the nominated indoor design sound levels will be met. On the first matter, I note that the proposed development is not shown as an ANEF contour on the Noise Exposure Forecast Contour Map. On the second issue, I am satisfied the indoor design levels have been considered in the Acoustic Assessment prepared by Acoustic Logic which forms part of the development application.

34. Clause 6.9 ‘Essential services’ provides that development consent must not be granted to a development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

35. The parties agree, and I accept, adequate arrangements have been made to make available the services that are essential to the development, noting the site survey nominates their existing locations. I am satisfied the essential services requirements under cl 6.9 of LEP 2021 are met.

36. Clause 6.10 ‘Design Excellence’ applies to the development as it involves the erection of a building greater than three storeys on land zoned MU1 Mixed Use. Pursuant to subcl (4) of the provision, consent must not be granted unless the consent authority is satisfied the development exhibits design excellence. Further, subcl (5) contains matters the consent authority must have regard to in determining whether the development exhibits design excellence. Those matters are:

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)  whether the development detrimentally impacts on view corridors,

(d)  how the development addresses the following matters—

(i)  the suitability of the land for development,

(ii)  existing and proposed uses and use mix,

(iii)  heritage issues and streetscape constraints,

(iv)  the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  environmental impacts such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii)  pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of pedestrian networks,

(ix)  the impact on, and proposed improvements to, the public domain,

(x)  achieving appropriate interfaces at ground level between the building and the public domain,

(xi)  excellence and integration of landscape design,

(xii)  the provision of communal spaces and meeting places,

(xiii)  the provision of public art in the public domain,

(xiv)  the provision of on-site integrated waste and recycling infrastructure,

(xv)  the promotion of safety through the application of the principles of crime prevention through environmental design.

37. The development application includes a Design Report prepared by the project architects that documents a detailed site analysis, the key design insights of the proposal, the requirements of SEPP 65 and the design principles as well as the matters listed at cl 6.10(5) of LEP 2021. Further, the development application includes an assessment of the proposed development against the provisions of Hurstville Development Control Plan No 2 (DCP 2021). In forming an opinion that the proposed development exhibits design excellence, I have considered those matters at cl 6.10(5) of LEP 2021, assisted by these documents and the architectural and landscape plans.

38. The Court’s opinion is summarised as follows:

1. A high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved by the arrangement of what is described as a village of buildings in a landscape setting. The location of the towers on the site maximises access to sunlight and cross ventilation for the proposed residential apartments. The massing of the buildings is responsive to the context of the site with taller buildings fronting Forrest Road, and lower towers on Gloucester Road. The materials chosen are high quality (eg face brick, decorative blockwork) and durable in finish.

2. The form and external appearance of the development will improve the quality and amenity of the public domain given the use of quality external finishes and the provision of a commercial promenade fronting Forrest Road. The bulk, massing and modulation of the proposal responds to the built form character anticipated by the development controls in LEP 2021.

3. Additionally, portions of the front setback are dedicated to soft landscaping, and the extent of deep soil and planter boxes contribute to the amenity of the public domain.

4. I accept the analysis in the SEE that concludes that the proposal has been designed having regard to the principles for minimising crime risk and will provide reasonable natural surveillance internally and to surrounding streets.

5. I accept the agreement of the parties who submit that there are no significant view corridors that are detrimentally impacted by the proposal.

6. The matters listed at subcl (5)(d) of LEP 2021 have been analysed and documented in the SEE, the Design Report, the landscape plans which detail comprehensive design for the landscaping of the site and all public domain areas surrounding the Site, and the architectural plans. Having reviewed these documents, I can be satisfied that the development positively addresses the listed matters.

39. Clause 6.11 ‘Environmental Sustainability’ applies to the development as it involves the erection of a building on land zoned MU1 Mixed Use. Subclause (3) applies as the proposed buildings have a gross floor area greater than 1500 m². Pursuant to subcl (3) development consent must not be granted unless the following matters have been considered in the design of the building:

(a)  water demand reduction, including water efficiency, water recycling and minimisation of potable water usage,

(b)  energy demand reduction, including energy generation, use of renewable energy and reduced reliance on mains power,

(c)  indoor environmental quality, including daylight provision, glare control, cross ventilation and thermal comfort,

(d)  the minimisation of surfaces that absorb and retain heat and the use of surfaces that reflect heat where possible,

(e)  a reduction in new materials consumption and use of sustainable materials, including recycled content in concrete, sustainable timber and PVC minimisation,

(f)  transport initiatives to reduce car dependence such as providing cycle facilities, car share and small vehicle parking spaces.

40. Applying s 8 of SEPP BASIX, cl 6.11 of LEP 2021, as a competing provisions of an environmental planning instrument, has no effect to the extent to which it aims to:

(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of a building to which this Policy applies or in the use of the land on which such a building is situated, or

(b)  to improve the thermal performance of a building to which this Policy applies.

41. As noted at [19] the development application is accompanied by a BASIX certificate. Further, as detailed in the SEE I can be satisfied the matters at subcl (3) have been considered in the design of the development as:

• the provision of solar access and natural ventilation to the proposed apartment exceed the benchmarks in the Apartment Design Guide;

• The considerations involved in the choice of materials for the development is detailed in the Design Report; and

• The site is located within close proximity of the major centre of Hurstville and its rail station meaning that future residents have access to shopping, transport and services within walking distance reducing car dependence.

42. Clause 6.13 of LEP 2021 applies to development in the MU1 Mixed Use zone. It provides that development consent must not be granted for development on land to which the clause applies unless the consent authority is satisfied that the development will not cause part of the ground floor of a building that is facing a street to be used for residential, tourist or visitor accommodation.

43. The operation of cl 6.13 is modified by subcl (5A) and cl 14 of Sch 1 to LEP 2021. The effect of both provisions is that cl 6.13 does not apply to a portion of the site, that being the part of the lot identified as ‘Area A’ on the Additional Permitted Uses Map to LEP 2021. The parties agree, and I accept, that no residential accommodation is proposed at the ground floor of buildings A, B and C. Further, Buildings D and E are located in the part of the site where the operation of the provision is excluded.

Other matters

44. DCP 2021 applies to the site. The statement of environmental effects (SEE) details the compliance of the proposed development with DCP 2021. In determining the development application, I have considered the provisions of both development control plans: s 4.15(1) of the EPA Act. I accept the agreement of the parties that none warrant the refusal of the application.

45. The development application was advertised and notified to surrounding properties from 17 March to 31 March 2022. Three submissions were received. I am satisfied that the submissions received have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

46. Comment was sought on the development application from NSW Police in relation to safer by design principles. The conditions recommended by the NSW Police are incorporated into the annexed conditions of consent.

Conclusion

47. 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.

48. 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.

49. The Court notes that:

1. The Respondent has approved, pursuant to cl 55 of the EPA Regulation, the Applicant amending the Development Application No DA/2022/0061 and the supporting documents, the subject of these proceedings, to rely on the documents and further information specified below:

Amended Architectural Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Title Sheet	DA-001-001	H	21 February 2024	Turner Studio
Siteworks Site Plan	DA-001-010	G	21 February 2024	Turner Studio
Siteworks Site Analysis	DA-010-011	F	21 February 2024	Turner Studio
Siteworks Site Analysis Transport	DA-010-012	F	21 February 2024	Turner Studio
Siteworks Excavation Plan	DA-010-013	F	21 February 2024	Turner Studio
Notification Plan	DA-050-005	G	21 February 2024	Turner Studio
Notification Plan Elevation	DA-050-006	G	21 February 2024	Turner Studio
Notification Plan Elevation	DA-050-007	G	21 February 2024	Turner Studio
Notification Plan Elevation	DA-050-008	G	21 February 2024	Turner Studio
GA Plans Basement 03	DA-110-005	ZD	21 February 2024	Turner Studio
GA Plans Basement 02	DA-110-006	ZD	21 February 2024	Turner Studio
GA Plans Basement 01	DA-110-007	ZF	21 February 2024	Turner Studio
GA Plans Ground Level	DA-110-008	ZG	21 February 2024	Turner Studio
GA Plans Level 01	DA-110-010	ZE	21 February 2024	Turner Studio
GA Plans Level 02	DA-110-020	ZB	21 February 2024	Turner Studio
GA Plans Level 03	DA-110-030	ZA	21 February 2024	Turner Studio
GA Plans Level 04	DA-110-040	ZA	21 February 2024	Turner Studio
GA Plans Level 05	DA-110-050	ZA	21 February 2024	Turner Studio
GA Plans Level 06	DA-110-060	ZB	21 February 2024	Turner Studio
GA Plans Level 07	DA-110-070	ZA	21 February 2024	Turner Studio
GA Plans Level 08	DA-110-080	ZB	21 February 2024	Turner Studio
GA Plans Level 09	DA-110-090	ZA	21 February 2024	Turner Studio
GA Plans Level 10	DA-110-100	ZA	21 February 2024	Turner Studio
GA Plans Level 11	DA-110-110	ZB	21 February 2024	Turner Studio
GA Plans Level 12	DA-110-120	ZA	21 February 2024	Turner Studio
GA Plans Level 13	DA-110-130	ZA	21 February 2024	Turner Studio
GA Plans Level 14	DA-110-140	ZA	21 February 2024	Turner Studio
GA Plans Level 15	DA-110-150	ZA	21 February 2024	Turner Studio
GA Plans Level 16	DA-110-160	ZA	21 February 2024	Turner Studio
GA Plans Level 17	DA-110-170	ZB	21 February 2024	Turner Studio
GA Plans Level 18	DA-110-180	ZA	21 February 2024	Turner Studio
GA Plans Level 19	DA-110-190	ZB	21 February 2024	Turner Studio
GA Plans Roof Level	DA-110-200	ZB	21 February 2024	Turner Studio
GA Elevations North East Elevation	DA-210-101	P	21 February 2024	Turner Studio
GA Elevations North West Elevation	DA-210-201	O	21 February 2024	Turner Studio
GA Elevations South West Elevation	DA-210-301	Q	21 February 2024	Turner Studio
GA Elevations North East and North West Elevation	DA-210-401	P	21 February 2024	Turner Studio
GA Elevations South East and South West Elevation	DA-210-501	O	21 February 2024	Turner Studio
GA Elevations East Elevations	DA-210-601	O	21 February 2024	Turner Studio
GA Elevations South and South East Elevation	DA-210-701	O	21 February 2024	Turner Studio
GA Detail North East Elevation	DA-210-901	E	21 February 2024	Turner Studio
GA Sections Section AA	DA-310-010	T	21 February 2024	Turner Studio
GA Sections Section BB	DA-310-201	T	21 February 2024	Turner Studio
GA Sections Section CC	DA-310-301	T	21 February 2024	Turner Studio
Tree Retention	DA-710-001	I	21 February 2024	Turner Studio
Control Diagram Proposed Height of Building	DA-715-001	M	21 February 2024	Turner Studio
Control Diagram Proposed Height of Building Detail	DA-715-002	M	21 February 2024	Turner Studio
Control Diagram Proposed Height of Building Plan	DA-715-003	M	21 February 2024	Turner Studio
Control Diagram Proposed Height of Building Baseline Terrain	DA-715-004	E	21 February 2024	Turner Studio
Amenity Diagram (ADG) Ground Floor to Level 03	DA-720-001	I	21 February 2024	Turner Studio
Amenity Diagram (ADG) Level 04 to Level 07	DA-720-002	I	21 February 2024	Turner Studio
Amenity Diagram (ADG) Level 08 to Level 11	DA-720-003	I	21 February 2024	Turner Studio
Amenity Diagram (ADG) Level 12 to Level 15	DA-720-004	I	21 February 2024	Turner Studio
Amenity Diagram (ADG) Level 16 to Level 18	DA-720-005	I	21 February 2024	Turner Studio
Deep Soil and Communal Space (ADG) Communal Open Space	DA-730-001	I	21 February 2024	Turner Studio
Deep Soil and Communal Space (ADG) Communal Open Solar Access	DA-730-002	I	21 February 2024	Turner Studio
GFA Diagrams Ground Floor to Level 03	DA-770-001	J	21 February 2024	Turner Studio
GFA Diagrams Level 04 to Level 07	DA-770-002	J	21 February 2024	Turner Studio
GFA Diagrams Level 08 to Level 11	DA-770-003	J	21 February 2024	Turner Studio
GFA Diagrams Level 12 to Level 15	DA-770-004	J	21 February 2024	Turner Studio
GFA Diagrams Level 16 to Level 18	DA-770-005	J	21 February 2024	Turner Studio
Sun Eye Diagrams 9AM - 12PM	DA-970-003	H	21 February 2024	Turner Studio
Sun Eye Diagram 1PM – 3PM	DA-970-004	FH	21 February 2024	Turner Studio
Shadow Diagrams June 21st 9AM – 10AM	DA-795-001	M	21 February 2024	Turner Studio
Shadow Diagrams June 21st 11AM – 12PM	DA-795-002	M	21 February 2024	Turner Studio
Shadow Diagrams June 21st 1PM – 2PM	DA-795-003	M	21 February 2024	Turner Studio
Shadow Diagrams June 21st 3PM	DA-795-004	M	21 February 2024	Turner Studio
Adaptable Plan Layouts Sheet 01	DA-810-001	K	21 February 2024	Turner Studio
Adaptable Plan Layouts Sheet 02	DA-810-002	K	21 February 2024	Turner Studio
Adaptable Plan Layouts Sheet 03	DA-810-003	J	21 February 2024	Turner Studio
Adaptable Plan Layouts Sheet 04	DA-810-004	K	21 February 2024	Turner Studio
Adaptable Plan Layouts Sheet 05	DA-810-005	J	21 February 2024	Turner Studio
Adaptable Plan Layouts Sheet 06	DA-810-006	K	21 February 2024	Turner Studio
Supplementary sections Loading Dock	DA-820-001	E	21 February 2024	Turner Studio
Supplementary sections Carpark Entry Ramp	DA-820-002	F	21 February 2024	Turner Studio
Supplementary sections Interface to pedestrian access	DA-820-003	E	21 February 2024	Turner Studio
Council Response Shopfront activation	DA-830-001	E	21 February 2024	Turner Studio
Council Response Shopfront activation	DA-830-002	E	21 February 2024	Turner Studio
Council Response Lobbies	DA-830-003	G	21 February 2024	Turner Studio
Materials & Finishes Board Sheet 1	DA-890-001	F	21 February 2024	Turner Studio
Materials & Finishes Board Sheet 2	DA-890-002	F	21 February 2024	Turner Studio
3D Views Forest Rd CGI	DA-910-001	F	21 February 2024	Turner Studio
3D Views Forest Rd CGI	DA-910-002	F	21 February 2024	Turner Studio
3D Views Gloucester Rd CGI	DA-910-003	F	21 February 2024	Turner Studio
3D Views Gloucester Rd CGI	DA-910-004	F	21 February 2024	Turner Studio
920 External Views 3D External Views	DA-920-001	H	21 February 2024	Turner Studio
920 External Views 3D External Views	DA-920-002	H	21 February 2024	Turner Studio
920 External Views 3D External Views	DA-920-003	E	21 February 2024	Turner Studio
Amended Landscape Plans
Plan name	Drawing ref	Revision	Date	Prepared by
3.1 Vegetation Management Plan	DA 16	G	6 February 2024	RPS Group
3.2 Master Plan	DA 17	G	6 February 2024	RPS
3.3 Ground Floor Plan	DA 18	G	6 February 2024	RPS
3.4 Ground Floor Programming	DA 19	G	6 February 2024	RPS
3.5 Roof Levels	DA 20	G	6 February 2024	RPS
3.6 Roof Level Programming	DA 21	G	6 February 2024	RPS
3.7 Canopy Tree Plan	DA 22	G	6 February 2024	RPS
3.8 Ground Movement Plan	DA 23	G	6 February 2024	RPS
3.9 Tree Plan – Ground	DA 24	G	6 February 2024	RPS
3.10 Tree Plan – Podium	DA 25	G	6 February 2024	RPS
3.11 Soil Plan – Ground	DA 26	G	6 February 2024	RPS
3.12 Soil Plan – Podium	DA 27	G	6 February 2024	RPS
3.13 Elevation – Forest Road	DA 28	G	6 February 2024	RPS
3.14 Elevation – Gloucester Road	DA 29	G	6 February 2024	RPS
3.15 Street Interface Sections	DA 30	G	6 February 2024	RPS
3.16 OSD & Building D Sections	DA 31	G	6 February 2024	RPS
3.17 Podium Section 1	DA 32	G	6 February 2024	RPS
3.18 Podium and OSD Section 2	DA 33	G	6 February 2024	RPS
3.19 Podium Section 3	DA 34	G	6 February 2024	RPS
4.1 Planting Palette	DA 35	G	6 February 2024	RPS
4.2 Planting Schedule	DA 36	G	6 February 2024	RPS
4.3 Typical Details	DA 37	G	6 February 2024	RPS
4.3 Typical Details	DA 38	G	6 February 2024	RPS
4.4 Maintenance Guidelines	DA 39	G	6 February 2024	RPS
Appendix – Drawing Set	DA 40	G	6 February 2024	RPS
Appendix – Drawing Set	DA 41	G	6 February 2024	RPS
Appendix – Drawing Set	DA 42	G	6 February 2024	RPS
Appendix – Drawing Set	DA 43	G	6 February 2024	RPS
Appendix – Drawing Set	DA 44	G	6 February 2024	RPS
Appendix – Drawing Set	DA 45	G	6 February 2024	RPS
Appendix – Drawing Set	DA 46	G	6 February 2024	RPS
Appendix – Drawing Set	DA 47	G	6 February 2024	RPS
Appendix – Drawing Set	DA 48	G	6 February 2024	RPS
Appendix – Drawing Set	DA 49	G	6 February 2024	RPS
Amended Stormwater Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Cover Sheet, Locality and Drawing Index	C-0000	C	14 December 2023	BG&E
General Notes	C-0001	C	14 December 2023	BG&E
Siteworks and Drainage Plan Ground Floor Level	C-0200	G	14 December 2023	BG&E
Siteworks and Drainage Plan Basement 1 Level	C-0210	C	14 December 2023	BG&E
Driveway Sections	C-0270	D	14 December 2023	BG&E
Drainage Catchment Plan	C-0300	C	14 December 2023	BG&E
Drainage Details	C-0340	C	14 December 2023	BG&E
OSD Section	C-0350	C	14 December 2023	BG&E
OSD Section and Details	C-0351	D	14 December 2023	BG&E
Erosion and Sediment Control Plan	C-0700	C	14 December 2023	BG&E
Erosion and Sediment Control Details	C-0710	C	14 December 2023	BG&E
BASIX Plans
BASIX Stamped Plans	5 March 2024	Greenview Consulting Pty Ltd
Reports
Report name	Ref	Revision	Date	Prepared by
Amended Clause 4.6 – Building Height Development Standard	3460-8106-4234	v. 1-	February 2024	Sutherland & Associates
Amended Arboricultural Impact Assessment Report	ARB-2133-001	F	4 December 2023	Sturt Noble Arboriculture
Responses to Traffic & Parking Contentions	-	-	18 December 2023	JMT Consulting
Amended Operational Waste Management Plan	3589	H	27 October 2023	Elephant’s Foot Recycling Solutions
Amended Design Report prepared by Turner Studio	14048	Development Application Submission	6 February 2024	Turner Studio
Amended DCP table prepared by Sutherland & Associates Planning	February 2024	Sutherland & Associates
Amended BASIX Certificate	1252504M_02	5 March 2024	Greenview Consulting Pty Ltd
NatHERS Certificate	5 March 2024	Greenview Consulting Pty Ltd
NatHERS Thermal Performance Specification	5 March 2024	Greenview Consulting Pty Ltd

50. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA/2022/0061 for the demolition of the existing structures and construction of a 6-18 storey mixed used development across 5 buildings containing 349 residential apartments, retail and office floor space above 3 basement levels containing 453 parking spaces and tree removal at 9 Gloucester Road, Hurstville subject to conditions annexed here to and marked Annexure A.

3. The Applicant is to pay the Respondent's costs “thrown away” as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $35,000, which is to be paid within 28 days of orders being made approving the application.

D Dickson

Commissioner of the Court

2023.189807 Annexure A

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Decision last updated: 23 April 2024