Platino Properties Pty Ltd v The Council of the City of Sydney

[2021] NSWLEC 1717

Land and Environment Court

New South Wales

Medium Neutral Citation:

Platino Properties Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1717

Hearing dates:

Conciliation conference held on 11 November 2021

Date of orders:

25 November 2021

Decision date:

25 November 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The orders of the Court are at [35]

Catchwords:

DEVELOPMENT APPLICATION – boarding house – consistency with character and streetscape – cl 4.6 request to vary developments standards of FSR, height and motorcycle parking - conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 3, 29, 30, 30A

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Sydney Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Platino Properties Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Singh (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Sydney City Council (Respondent)

File Number(s):

2021/126341

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) D/2020/1462 by the Council of the City of Sydney (hereafter the Council), which as amended, seeks the construction of a part four/part five storey mixed use building on Lots 1, 2, 3, 4 and 5 DP 810195, also known as 22-26, 28-30 and 32 Botany Road, Alexandria (hereafter the site).

2. The DA was submitted to Council on 4 January 2021, and internally assessed, although not yet determined.

3. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams.

5. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA that contextualise the site.

6. The site is approximately 851.9m² in area. The site has its primary frontage to the east by Botany Road, with secondary frontages to the north by Chapel Street and west by Spencer Lane. The surrounding area exhibits variable size and design of commercial and residential developments.

7. The site is currently occupied by three late Victorian, early Federation shop-top housing buildings, fronting towards the primary street frontage.

8. The Council agreed for the applicant to amend the plans and documents, that support the amended DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

9. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and resident concerns have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA D/2020/1462, with conditions. The Council has delegation to make the agreement from the Local Planning Panel.

10. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA D/2020/1462, subject to conditions in Annexure ‘A’.

11. The parties identified the jurisdictional prerequisites of the: EPA Reg; State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Sydney Local Environmental Plan 2012 (SLEP). In addition, the relevant requirements of the Sydney Development Control Plan 2012 (SDCP) are considered in the merit assessment.

12. The applicant relies on written owners consent for the land that is addressed by the amended DA, which satisfies the requirements of cl 49 of the EPA Reg.

13. In compliance with the requirements of SEPP 55, the parties agree that based on the historical use surrounding the site, the land below the proposed works is likely contaminated. However, Council explains that based on the detailed site assessment and the remedial action plan (RAP), together with the conditions of consent, the site is deemed suitable for the proposed development, which addresses the requirements of cl 7.

14. In compliance with the requirements of SEPP ARH, the proposed boarding house, is supported by amended plans and conditions of consent. The parties agree that the proposed development, as amended, is compatible with the surrounding character and provides sufficient amenity to future boarders. The proposed boarding house complies with the relevant development standards of the SEPP ARH, except cl 30(1)(h) relating to motorcycle parking, considered below. Specifically, the retention of the front facades of the buildings is compatible with the local area, consistent with cl 30A. Further consideration of cl 29(1) is described below.

15. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

16. The site is zoned B4 Mixed use, pursuant to cl 2.3 of the SLEP. The proposed development is permissible with consent and the parties agree that the objectives of the zone are appropriately addressed.

17. The proposed development satisfies the relevant standards of the SLEP, however does exceed the numeric requirements of cl 4.3 (height) and cl 4.4 (floor space ratio, FSR).

18. It is accepted by the parties that a cl 4.6 written request, is required pursuant to cl 4.6 of the SLEP, seeking a variation of the non-compliant height and FSR, established in cll 4.3 and 4.4 of the SLEP, respectively, and motorcycle parking, established in cl 30(1)(h) of the SEPP ARH. The Court must be satisfied that relevant request/s to vary the standards is appropriately addressed, pursuant to cl 4.6 to grant consent to the DA.

19. The cl 4.6 written request for FSR variation explains that the proposed development exceeds the (cl 4.4 of the SLEP) FSR standard, and including the additional benefit of cl 29(1) in the SEPP ARH, calculated at 2.25:1. The amended building design exceeds the FSR by 15%, being 2.58:1, relying on a gross floor area of 2189m².

20. The cl 4.6 written request for height variation explains that the proposed development exceeds the (cl 4.4 of the SLEP) height standard, established at 15m. The amended DA proposes a building with a maximum height of 15.6m (over a small portion of the proposed building), creating a variation of 4% from the height standard.

21. The cl 4.6 written request for motorcycle parking variation explains that the proposed development does not achieve the cl 30(1)(h) SEPP ARH standard, established at 5 spaces for each boarding room, thereby there is a requirement of 13.2 spaces for the proposed 66 room boarding house. The amended DA proposes no motorcycle parking spaces, a variation of 100% from the standard.

22. The cl 4.6 written requests explain that the non-compliance in the height, FSR and motorcycle standards do not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity.

23. It is explained in the (cl 4.6) written submissions that the site still references the historic development on the street, and addresses the topographic and street form. The elements of the proposed development that result in the non-compliances will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk/scale impacts to adjoining developments or future boarders. The exceedance in the relevant standards does not result in a development that is out of character with the local area, and existing in the streetscape. There are sufficient environmental planning grounds for a variation in the height, FSR and motorcycle standards.

24. According to the cl 4.6 written requests, there are no adverse impacts to visual bulk, solar access or privacy as a result of the non-compliance with the development standards for the proposed development. The proposed development is consistent with the zone objectives and relevant development standards for cll 4.3 and 4.4 of the SLEP, and cl 3 (aims) of the SEPP ARH (noting there are no objectives relevant for cl 30). The proposed building is compatible with existing and future buildings in the surrounding area. The future boarders and those using the retail shops of the proposed development have readily available and convenient access to public transport and therefore will not rely on motorcycle parking. Compliance with the standards of non-compliance would therefore be unreasonable and unnecessary.

25. The (cl 4.6) written requests consider that a variation of the height, FSR and motorcycle parking development standards is appropriate, and flexibility of the standards is justified. There is no public benefit in maintaining these standards on the site, as the proposed development is consistent with the character, bulk and scale of the surrounding context.

26. Having reviewed the (cl 4.6) written requests, I agree that the written requests for variation of the height, FSR and motorcycle parking standards address the requirements of cl 4.6(3) of the SLEP and SEPP ARH, by describing sufficient environmental planning grounds to justify the development standards exceedance, and that strict compliance of these standards would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the SLEP is satisfied.

27. The proposed development, as described to the Court, is consistent with the objectives of the zone (for the B4 zone), the height (cl 4.3) and FSR (cl 4.4) standards, as established in the SLEP. There are no relevant objectives for cl 30(1)(h) of the SEPP ARH, although the proposed development is considered consistent with the aims (cl 3) of the SEPP ARH. The breach in the relevant standards will not cause undue concern to (existing and future) surrounding businesses or residents, the streetscape, or those utilising the site. The concerns raised by residents have been addressed by the proposed amendments to the design of the dwelling, which do not result from the standard non-compliances. The proposed development is in the public interest, satisfying cl 4.6(4)(a)(ii).

28. I accept the cl 4.6’s explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standards in this instance, and that there is no public benefit to maintaining the relevant standards as described above, for the proposed development. Therefore, the sought variation of cll 4.3 and 4.4 of the SLEP (including the bonus FSR from cl 29(1) of the SEPP ARH), and cl 30(1)(h) of the SEPP ARH development standards is consistent with cll 4.6(4)(b) or (5) of the EPA Act.

29. I am satisfied that the requirements of cl 4.6 of the SLEP and SEPP ARH have been addressed, and that a variation in the height, FSR and motorcycle parking standards should be granted.

30. The parties agree that the relevant requirements of the SDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the SDCP. In response to the initial and subsequent notification periods for the DA, the submissions received by Council were considered in the merit assessment. The amended plans and supporting documents address the concerns of the residents.

31. Based on the amended plans and supporting documents to the DA including (cl 4.6) written requests for variation of the FSR, height and motorcycle parking development standards, the contentions as expressed in the Statement of Facts and Contentions (as filed) are explained to the Court as resolved to the satisfaction of the parties. The parties explain that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought. The Council has undertaken the appropriate merit assessment of the proposed development.

32. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA D/2020/1462 should be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

33. 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.

34. The Court notes:

1. That the Council of the City of Sydney as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA D/2020/1462.

2. The Applicant has uploaded the amended application on the NSW planning portal on 11 November 2021.

3. The Applicant filed the amended application with the Court on 11 November 2021.

35. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,000.00 within 28 days from the date of these Orders.

2. The written request made pursuant to cl 4.6 of Sydney Local Environmental Plan 2012 (SLEP 2012) to justify the contravention of the height of buildings development standard contained in cl 4.3 of SLEP 2012 prepared by Chapman Planning Pty Ltd and dated 20 September 2021 is upheld.

3. The written request made pursuant to cl 4.6 of SLEP 2012 to justify the contravention of the floor space ratio development standard contained in cl 4.4 of SLEP 2012 and cl 29(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) prepared by Chapman Planning Pty Ltd and dated 10 November 2021 is upheld.

4. The written request made pursuant to cl 4.6 SLEP 2012 to justify the contravention of the motorcycle parking development standard contained in cl 30(1)(h) of the SEPP ARH prepared by Chapman Planning Pty Ltd and dated November 2021 is upheld.

5. The appeal is upheld.

6. Development application D/2020/1462 for construction of a part four, part five storey mixed use building, including partial demolition, ground floor commercial use and a boarding house at 22-32 Botany Road, Alexandria is approved subject to the conditions at Annexure “A”.

…………………………

Sarah Bish

Commissioner of the Court

(Annexure A) (514583, pdf)

**********

Decision last updated: 25 November 2021