Place Studios Au Pty Ltd v Bayside Council

[2022] NSWLEC 1718

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Place Studios Au Pty Ltd v Bayside Council [2022] NSWLEC 1718

Hearing dates:

Conciliation conference on 25 October 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number DA 2021/260, seeking consent for the demolition of the existing structures on-site and construction of an eight-storey residential flat building on Lot 1 in DP624661, Lots 29, 30, 31, 32 in DP4059 and Lots B and C in DP325348, known as 28 - 36 Flora Street and 24 - 24A Marsh Street, subject to the conditions in Annexure 'A'.

(3) The Applicant is to pay the Respondent’s costs thrown away by the amended development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the amount of $16,500.00 within 28 days of the date of these orders.

(4) The amended plans are to be uploaded by the Applicant to the NSW Planning Portal by 4 November 2022.

Catchwords:

DEVELOPMENT APPEAL – residential flat building– conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000 cl 55, Sch 1 pt 1 cl 2A

Land and Environment Court Act 1979 s 34

Rockdale Development Control Plan 2011

Rockdale Local Environmental Plan 2011 cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.4, 6.7, 6.12, 6.14

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

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.48, 2.119, 2.120, 2.122

Category:

Principal judgment

Parties:

Place Studios Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Solicitors
G McKee (Solicitor)(Applicant)
P Brown (Solicitor) (Respondent)

McKees Legal Solutions (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/176377

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) 8.15(3) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2021/260 (the DA) by Bayside Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The subject site comprises Lot 1 in DP624661, Lots 29, 30, 31, 32 in DP4059 and Lots B and C in DP325348, known as 28-36 Flora Street and 24-24A Marsh Street, Arncliffe.

3. The DA seeks approval for the demolition of the existing structures on-site and construction of an eight-storey residential flat building and associated basement carparking and landscaping on 28 - 36 Flora Street and 24 - 24A Marsh Street.

4. The DA was lodged with Bayside Council (the Respondent) on 28 May 2021 and notified by the Respondent from 9 June 2021 to 12 July 2021. No submissions were received. On 14 June 2022, the Respondent wrote to the Applicant requesting the DA be withdrawn. On 17 June 2022 the Class 1 appeal was filed.

5. 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 25 October 2022, and at which I presided.

6. During the s 34 conference, the parties considered amended plans and material that now resolves the Council's Contentions. The Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant amending the DA in accordance with the amended plans and material listed at Annexure A of the s 34 Agreement (Amended DA).

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 November 2022.

8. The parties asked 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, 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. The main changes between the plans as originally submitted to Council and the Amended Development Application, the subject of the s 34 agreement, are:

1. The basement level B1 was redesigned to facilitate private waste collection.

2. The ground and first floor plans were amended to create a 2-storey entry, including removal of the bike storage area and a bicycle storage pod area.

3. Creating a communal room.

4. Significant amendments to the landscaping proposed to facilitate outdoor communal areas and amenity.

5. The corner presentation to the south now includes windows to activate this prominent element of the building.

6. A number of apartments were redesigned internally, and the fire booster was relocated.

7. The carparking within the basement was amended to address the Australian standard.

8. The landscaping plan has been comprehensively revised, including the species selection for deep soil areas. The materials and finishes were revised, and a particular curved corner was amended to achieve consistency with the angular form of the architecture. The rooftop communal area was revised to include wind protection and a series of smaller spaces to accommodate various sized gatherings. A roof element was included for weather protection.

10. The Applicant also provided additional information to the Council to assist in its assessment, crossflow diagrams were updated, a block model of a possible building to the north to ensure compliant solar access, ecologically sustainable development measures were detailed, a storage calculation plan was added, and dimensions were added to identify internal unit bedroom and living areas, balconies with the driveways, lobby entry corridors

11. 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 power under s 4.16 of the EPA Act.

12. 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.

13. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [14] – [26] below.

Satisfaction of jurisdiction

14. The relevant jurisdictional matters in relation to the Rockdale Local Environmental Plan 2011 (RLEP) are:

1. The Site is zoned R4 High Density Residential under the RLEP and residential flat buildings are permitted with Council’s consent.

2. Clause 2.3(2) of RLEP indicates that regard must be had to the zone objectives. The relevant zone objectives in the R4 zone are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. From the evidence, I am satisfied that the relevant objectives of the zone are satisfied given that the proposal provides housing to meet the needs of the community, complementing the mix of dwelling houses and medium and high scale residential flat buildings in proximity to the Arncliffe town centre.

4. Clause 2.7 - Demolition requires development consent, development consent provided by the consent authority includes consent for the demolition of the existing structures on the Site.

5. Clause 4.3 - Height of Buildings, specifies that the maximum building height permitted on the site is 26.5m. The proposal, as amended, complies with this development standard.

6. Clause 4.4 - Floor Space Ratio, specifies that the maximum floor space ration permitted on the site is 2.2:1. The proposed development as amended complies with the floor space ratio.

7. Under Clause 6.1, Acid Sulfate Soils, the site is classified as Class 3 Acid Sulfate Soil. An Acid Sulfate Soil Assessment has been prepared by Foundation Earth Sciences. The report concludes at p 24 that the potential for soil disturbance is considered to be high and recommends the completion of an Acid Sulfate Soil Management Plan.

8. Clause 6.2(3) provides the development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. An Acid Sulfate Soils Management Plan by Geotechnical Consultants Australia Pty Ltd, dated 2 November 2022, has been prepared and is incorporated into the consent. Accordingly, I am satisfied that the requirements of cl 6.2(3) have been satisfied and I am of the view that the site is suitable for the proposed development subject to the imposition of conditions in accordance with that Management Plan.

9. To satisfy the requirements of Clause 6.2 - Earthworks, the DA is accompanied by a Geotechnical Investigation Report prepared by Foundation Earth Sciences, dated March 2021 which concludes, at p 21, that the proposed development is feasible provided the recommendations of the report are considered in the design and construction of the development. I am satisfied that cl 6.2 has been addressed subject to the imposition of appropriate conditions of consent.

10. Under Clause 6.4 - Airspace operations, the site is not within the ANEF Contour zone. General Terms of Approval have been issued by Sydney Airport at Condition 26 of the development consent which ensure the requirements of this Clause is met.

11. Clause 6.7 - Stormwater, requires appropriate stormwater management for the proposed development. I am satisfied that the stormwater plans prepared by ACOR Consultants, dated 19 October 2022 show a minimisation of impacts of urban stormwater and satisfy the requirements of cl 6.7(3).

12. Under Clause 6.12 - Essential Services, the consent authority must be satisfied that services essential to the development are or can be made available when required. The subject site is currently serviced by water, electricity, sewer as well as direct vehicular and pedestrian access services, as required by the clause. Where necessary, such services will be upgraded to meet any additional demands generated by the proposal. Conditions 27 and 28 in relation to water and electricity and the Stormwater Management Plan prepared by ACOR Consultants, dated 19 October 2022 referred to in Condition 63 satisfy me that essential services in relation to stormwater are met.

13. Under clause 6.14, Design Excellence, the site is located within the "Arncliffe Precinct". The proposed development is therefore required to demonstrate consistency with design excellence provisions outlined in this clause. The parties are satisfied that the proposal as amended via the s 34 process now demonstrates designed excellence having regard to cl 6.14(3) and the factors at cl 6.14(4). The findings of the Respondent’s Design Review Panel have been taken into account by the Respondent for the purposes of cl 6.14(5) and I am satisfied that the design excellence provisions of cl 6.14 have been met with the Amended DA.

14. The development application was made with the written consent of the owner of the subject site, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000.

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

15. The Amended DA is supported by BASIX Certificate No. 1203153M_03 dated 1 November 2022. This certificate confirms that the project passes the BASIX requirements. The provided BASIX Certificate satisfies the requirement in clause 2A in Part 1 of Schedule 1 to the EPA Regulation and complies with the requirements of the BASIX SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

16. SEPP Resilience and Hazards applies to the land the subject of the proposed development. SEPP Resilience and Hazards came into force on 1 March 2022 and transfers the provisions of State Environmental Planning Policy 55 – Remediation of Land to the new instrument.

17. Section 4.6 of SEPP Resilience and Hazards requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed.

18. A Detailed Site Investigation Report has been prepared by Foundation Earth Sciences which concludes at p 81 that the site can be made suitable for the proposed development, subject to the following:

• A hazardous materials assessment of the buildings be undertaken prior to demolition works being carried out on site; and

• Any soil requiring removal from the site, as part of future site works, be classified in accordance with the "Waste Classification Guidelines, Part 1: Classifying Waste" NSW EPA (2014).

19. An Acid Sulfate Soil Assessment has been prepared by Foundation Earth Sciences. The report concludes at p 24 that the potential for soil disturbance is considered to be high and recommends the completion of an Acid Sulfate Soil Management Plan. An Acid Sulfate Soils Management Plan by Geotechnical Consultants Australia Pty Ltd dated 2 November 2022 has been prepared and is incorporated into the consent. I am therefore satisfied that the relevant requirements have been considered and that the development application meets the objectives of SEPP Resilience and Hazards.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

20. Section 2.119 of the Transport and Infrastructure SEPP, Development with Frontage to a Classified Road, applies to the proposed development. The Applicant’s Traffic and Parking Assessment Report prepared by Varga Traffic Planning Pty Ltd, dated 24 June 2022 concludes that the proposal development is consistent with this section and will not impact on the operation and function of the classified road.

21. Section 2.120 of the Transport and Infrastructure SEPP - Impact of road noise or vibration on non-road development, applies to the proposed development. The Amended DA is supported by an Acoustic Report prepared by Acoustic Works, dated 23 March 2021 which has recommended noise attenuation measures to satisfactorily meet the requirements of this section. Condition 51 of the development application consent ensures that the building shall be designed to minimise impacts from noise and vibration in accordance with the requirements of the SEPP.

22. Section 2.122 of the Transport and Infrastructure SEPP - Traffic Generating Development, applies as the proposed development is considered a traffic generating development as the primary frontage at Flora St connects to Marsh St, which is identified as a classified road. Transport for NSW (TfNSW) has issued General Terms of Agreement at condition 25 and I am satisfied that the requirements of Section 2.122 have been met.

23. Section 2.48 of the Transport and Infrastructure SEPP - Development likely to affect electricity transmission or electricity network, applies to the proposed development. General Terms of Approval were issued by Ausgrid at Condition 28 of the development application consent, in compliance with this Section of the SEPP.

24. I am therefore satisfied that the Amended DA complies with the various requirements of the Transport and Infrastructure SEPP, as set out in paragraphs [20] – [23].

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (“SEPP 65”)

25. Clause 28 of SEPP 65 requires the following matters to be taken into consideration in determining a development application:

• Advice (if any) from the design review panel;

• The design quality of the development when evaluated in accordance with the design quality principles; and

• The Apartment Design Guide.

26. The matters outlined in cl 28 have been taken into consideration by the Respondent and the Amended DA is considered by the Council to be satisfactory. I am satisfied that the Amended DA satisfies the design quality principles in SEPP 65, takes into account the advice of the Respondent’s Design Review Panel and is consistent with the requirements of the ADG. Therefore, in my view, consent can be granted to the proposed development, pursuant to this clause.

Conclusion

27. 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.

28. 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.

29. The Court notes that the parties have reached an agreement in a conciliation conference conducted pursuant to s 34(3) of the Land and Environment Court Act1979, as to a decision that the Court could have made in the proper exercise of its functions.

Notes

30. The Court notes:

1. Bayside Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending DA 2021/260 to remove the integrated status of the DA as substituted in accordance with the plans and documents listed at condition 1 of Annexure 'A'.

Orders

31. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA 2021/260, seeking consent for the demolition of the existing structures on-site and construction of an eight-storey residential flat building on Lot 1 in DP624661, Lots 29, 30, 31, 32 in DP4059 and Lots B and C in DP325348, known as 28 - 36 Flora Street and 24 - 24A Marsh Street, subject to the conditions in Annexure 'A'.

3. The Applicant is to pay the Respondent’s costs thrown away by the amended development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the amount of $16,500.00 within 28 days of the date of these orders.

4. The amended plans are to be uploaded by the Applicant to the NSW Planning Portal by 4 November 2022.

L Sheridan

Acting Commissioner of the Court

**********

(Annexure A)

Amendments

22 December 2022 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the Council name at [4].

Decision last updated: 22 December 2022