Samia v Bayside Council
[2020] NSWLEC 1526
•04 November 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Samia v Bayside Council [2020] NSWLEC 1526 Hearing dates: Conciliation conference on 26 October 2020 Date of orders: 04 November 2020 Decision date: 04 November 2020 Jurisdiction: Class 1 Before: Smithson AC Decision: The Court orders that:
(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $23,000 within 60 days of the date of these orders.
(2) The Applicant’s written request pursuant to cl 4.6 of the Botany Bay Local Environmental Plan 2013 seeking variation of the development standard relating to the height of buildings contained in clause 4.3 is upheld.
(3) The appeal is upheld.
(4) Development Application DA-2018/368 for the demolition of existing structures and the construction of a four storey mixed use development comprising 9 residential units, 1 commercial office space, associated landscaping and site works over 2 levels of basement car parking for 21 cars on the land at 1449 Botany Road, Botany, is approved subject to the conditions at Annexure ‘A’.
Catchwords: DEVELOPMENT APPLICATION – mixed use development – heritage conservation area – height breach – clause 4.6 written request – conciliation conference – agreement between the parties – orders
Legislation Cited: Botany Local Environmental Plan 2013
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55—Remediation of Land
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Water Management Act 2000
Cases Cited: Apartment Design Guide
Botany Development Control Plan 2013
Texts Cited: Apartment Design Guide
Botany Development Control Plan 2013
Category: Principal judgment Parties: Joseph Samia (Applicant)
Bayside Council (Respondent)Representation: Counsel:
Solicitors:
C Rose (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)
Wilshire Webb Staunton Beattie (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2020/95696 Publication restriction: Nil
Judgment
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ACTING COMMISSIONER: This is an appeal by Joseph Samia (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Botany Council (the Council) of Development Application No. 2018/368 (the application).
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The application seeks consent under the EPA Act for the demolition of existing buildings and construction of a mixed use development at 1449 Botany Road, Botany (the site).
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In an amended Statement of Facts and Contentions filed with the Court, contentions raised by the Council regarding the application, as amended with the leave of the Court, included: impact of the development on neighbouring properties and on heritage values (given the location of the site in a heritage conservation area and in the vicinity of heritage items); height breaches; design and landscaping concerns; and in terms of engineering aspects associated with access and onsite drainage.
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The original application was notified and a number of objections were received raising concerns in terms of many of these contentions and on the impact of the development on the amenity of adjoining properties.
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The appeal was listed for hearing before me. However, prior to the hearing, the parties conferred with respect to amendments to the application and agreed that further amendments could be undertaken to the development, supported by both parties, which addressed the contentions. The amended plans were notified and no submissions were received.
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The parties requested that the hearing be adjourned and the matter be listed as a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). This occurred and I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated.
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As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court could make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
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The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.
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In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.
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The parties provided a written jurisdictional statement with the agreement outlining why the agreement was lawful and why the appeal should be upheld.
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The application is required to comply with the requirements of the Botany Local Environmental Plan 2013 (the LEP) and the associated Botany Development Control Plan 2013 (the DCP).
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In this regard, the proposed development is permissible with consent in the B2 Local Centre zone in which the site is situated and is consistent with the objectives of the zone.
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The parties have had regard for the aims of the LEP at cl 1.2 in assessing the application.
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The proposed development, as amended complies with the maximum floor space ratio (FSR) requirement specified at cl 4.4 with a proposed FSR of 1.78:1.
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The modified development contravenes the maximum height requirement of 14m set by cl 4.3 of the LEP. The proposed building has a maximum height of 18.2m. This is a 30% exceedance of the standard.
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The maximum height exceedance occurs essentially to accommodate the rooftop communal open space (COS) with breaches primarily comprising the COS slab, stairs to access it, and lift overrun.
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Prior to consent being granted, I must be satisfied in terms of the provisions of cl 4.6 including with the adequacy of the cl 4.6 variation written request submitted with the amended application.
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I am satisfied that the cl 4.6 written request demonstrates that compliance with the building height is unreasonable and unnecessary in the circumstances as required by cl 4.6(3)(a) as, despite the non-compliances, the development meets the objectives of the height development standard in the LEP.
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The cl 4.6 requests also adequately establishes sufficient (and similar) environmental planning grounds that justify the height breach, as required by cl 4.6(3)(b).
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In this regard, the following is a summary of the justification provided in the cl 4.6 written request for the height breach:
The lift and fire stair provide equitable access to the rooftop COS which is located in the centre of the site. The fall of the land in this location results in a consequential breach whereas the rear of the building is well below the permissible height.
The nature of the surrounding development and the east-west orientation of the surrounding sites would mean that ground level COS would not receive compliant levels of solar access during mid-winter.
The design of the development has adopted an approach consistent with the design character of the surrounding and adjoining approved development, including in the provision of rooftop COS and in the street wall height, setback and materiality.
The elements of the building which breach the height control are setback from the Botany Road frontage and occur in a reduced footprint above the central part of the building. This means that the additional height will have very little visual impact upon the streetscape, public domain and neighbouring properties.
The breaches do not give rise to any significant amenity impacts on neighbours in terms of solar access, privacy, views or bulk and scale.
All of the habitable floor space of the proposed development is fully compliant with the height control.
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As the development meets the objectives of the B2 zone and of the height standard, I am satisfied that the development will be in the public interest.
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The heritage provisions at cl 5.10 of the LEP have also been considered in assessing the modified proposal and, having regard to recent neighbouring approvals, the proposal is found to meet the heritage objectives of the LEP subject to the agreed conditions of consent.
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Similarly, conditions of consent address the Council's original concerns in relation to compliance with cll 6.2 and 6.3 of the LEP which relate to site earthworks and stormwater management respectively.
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It is noted that the amended plans include an additional level of basement requiring approval under the Water Management Act 2000. As a consequence, the consent includes a deferred commencement condition to ensure that such an approval is obtained within 12 months and prior to the consent becoming operational. I am satisfied that such approval is of a procedural nature and would therefore likely be forthcoming.
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The development must also have regard to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG). I am satisfied that the relevant factors in SEPP 65 and the ADG have been considered.
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The development was amended to address the merit concerns raised and the Council is satisfied in terms of compliance with the design requirements of SEPP 65, the ADG and the DCP.
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Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) requires a consent authority to consider the contamination and remediation of land when determining a development application.
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In accordance with cl 7, the Council has considered whether the land is contaminated. A Preliminary Site Investigation was prepared for the site and included a condition requiring a Detailed Site Investigation following demolition of the buildings to ensure that if contamination is identified it is addressed. Agreed conditions of consent reflect this requirement and address any required remediation, and I am satisfied that the proposed development can be approved having regard to the requirements of SEPP 55.
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Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and conditions of consent require compliance with this Certificate.
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Accordingly, the Court orders that:
Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $23,000 within 60 days of the date of these orders.
The Applicant’s written request pursuant to cl 4.6 of the Botany Bay Local Environmental Plan 2013 seeking variation of the development standard relating to the height of buildings contained in clause 4.3 is upheld.
The appeal is upheld.
Development Application DA-2018/368 for the demolition of existing structures and the construction of a four storey mixed use development comprising 9 residential units, 1 commercial office space, associated landscaping and site works over 2 levels of basement car parking for 21 cars on the land at 1449 Botany Road, Botany, is approved subject to the conditions at Annexure ‘A’.
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Jenny Smithson
Acting Commissioner of the Court
Annexure A (367103, pdf)
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Decision last updated: 04 November 2020
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