The Trustee for 1449 Botany Unit Trust v Bayside Council

[2024] NSWLEC 1511

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Trustee for 1449 Botany Unit Trust v Bayside Council [2024] NSWLEC 1511

Hearing dates:

Conciliation conference on 21 February 2024, 26 April 2024, 20 May 2024, 5 and 12 June 2024, 31 July 2024 and 7 August 2024

Date of orders:

23 August 2024

Decision date:

23 August 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application DA 2023/144 for demolition of existing buildings and construction of a mixed use commercial and co-living housing development, at premises known as 1449 Botany Road, Botany, subject to the conditions of consent in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development application No. DA 2023/144 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $15,000.

(4)   The Applicant is to file a set of architectural, landscape and stormwater plans and documents referred to in paragraph [10] of this judgment, within seven days of these Orders.

Catchwords:

DEVELOPMENT APPLICATION – part 4 storey and part 5 storey mixed use development including co-living – integrated development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.10, 4.13, 4.15, 4.16, 4.17, 4.46, 8.7, 8.11, 8.15, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, ss 17, 34

Water Management Act 2000

Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.8, 6.9, Sch 5 Pt 2

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 3, s 67

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.118, 2.119, 2.120

Texts Cited:

NSW Office of Environment and Heritage, Guidelines for Consultants Reporting on Contaminated Sites, August 2011

National Environment Protection Council, Schedule B2 Guideline on Site Characterisation, 2011

Category:

Principal judgment

Parties:

The Trustee for 1449 Botany Unit Trust (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor)(Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/263559

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against Bayside Council’s (Council) deemed refusal of development application DA 2023/144 for demolition of existing structures and construction of a part 4 storey, part 5 storey mixed use development including co-living accommodation, comprising ground floor commercial tenancies, 66 co-housing rooms (including 16 single rooms and 51 double rooms), rooftop communal open space and at-grade & basement carparking (DA) located at 1449-1453 Botany Road, Botany NSW being the whole of the land in Lots 12 DP666561 and 1 in DP 576678 with a total area of 1,131.50m² (Site).

1. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

2. The proceedings were commenced on 18 August 2023 being an appeal against a deemed refusal of the DA by Council pursuant ss 8.7(1) and 8.11(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA was lodged on the NSW Planning Portal on 17 May 2023 being Application Number PAN-332902.

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) the EPA Act and s 34(3) of the LEC Act.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 21 February 2024, 26 April 2024, 20 May 2024, 5 and 12 June 2024 and 31 July 2024. The listing for the adjourned s 34 conciliation conference on 7 August 2024 was vacated upon the parties lodging an updated s 34 Agreement and supporting documentation. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, and granting consent to the DA subject to conditions in Annexure A.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 34(3) of the LEC Act, and s 4.16 of the EPA Act by upholding the appeal and granting consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings as set out below, and explained how the jurisdictional prerequisites have been satisfied:

1. EPA Act:

1. The DA is integrated development within the meaning of s 4.46 of the EPA Act as a water supply work approval is required pursuant to s 4.13 of the EPA Act and under the provisions of the Water Management Act 2000 (Water Mgt Act). The Council attended to the relevant notifications. On 19 September 2023, the Council received correspondence from the relevant agency being WaterNSW which provided general terms of approval to be included in the conditions to the DA.

2. The DA is not for designated development pursuant to s 4.10 of the EPA Act.

3. Owner’s consent: the DA was submitted in writing with the consent dated 9 May 2023 (Tab 15, Volume 2, of the Class 1 Application filed 18 August 2023).

4. Community Participation (s 4.15(1)(d), and Sch 1, Div 2, s 7(1) of the EPA Act): the DA was notified and advertised from 14 June 2023 to 14 July 2023, and 10 submissions were received. The Council is of the opinion that having taken into account those submissions the amended DA is worthy of approval.

5. The amended plans in the s 34(3) Agreement were the subject of direct notification to previous objectors. Submissions received in response to the direct notification have been considered by Council, and Council’s experts are satisfied that the proposal is worthy of approval based upon that material, and that no jurisdictional impediments exist to the grant of consent to the DA.

6. The parties agree that the conditions in Annexure A comply with the provisions of s 4.17(1).

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (RHSEPP): The DA is accompanied by a Stages 1 and 2 Site Contamination Investigation Report (ESA) by S McCormack of Geo-Environmental Engineering dated 16 September 2021, ref G21060BOT-R01F. The objective of the ESA was to address the requirements of the State Environmental Planning Policy No 55 – Remediation of Land by determining the suitability of the Site for the proposed land-use and possible constraints on future site development. The ESA was completed in accordance with the NSW Environment Protection Authority’s (NSW EPA) Contaminates Sites: Guidelines for Consultants Report on Contaminated Sites and National Environmental Protection Council’s (2013) Schedule B2 Guideline on Site Characterisation. The ESA concluded that based on observations made during the field investigations, the sampling and analysis program conducted at the Site, the proposed land-use and with respect to relevant statutory guidelines, that the Site is suitable for the proposed land-use as described in the DA, and further assessment and/or remediation and validation is not considered to be warranted. Subsequently A Preliminary Environmental Site Investigation was prepared by Environmental Consulting Services and its report dated 8 July 2024 concluded that the Site is suitable for redevelopment and sensitive land use, subject to including a condition of consent (draft condition 106 in Annexure A) regarding three aspects of waste management.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP):

1. The DA is accompanied by a Traffic Assessment by Varga Traffic Planning Pty Ltd dated 8 May 2023 which concluded that the DA will not have any unacceptable parking implications. The DA was referred to Transport for NSW (TfNSW) for concurrence and is assessed in accordance with ss 2.118 and 2.119 of the Infrastructure SEPP. TfNSW did not recommend any general terms of agreement to be inserted into Annexure A.

2. Section 2.120 of the Infrastructure SEPP includes provisions regarding the insulation of the DA from traffic noise emanating from Botany Road. The Acoustic Reports by Koikas Acoustics Pty Ltd dated 3 May 2023, 1 March 2024 and 19 March 2024 makes recommendation with respect to the use of certain materials and glazing, to ensure compliance with the noise criteria under s 2.120 of the Infrastructure SEPP. These recommendations have been included in draft conditions 1, 17, 74 and 75 of Annexure A.

4. State Environmental Planning Policy (Housing) 2021 (Housing SEPP), Ch 3 Pt 3 Co-living Housing: I am satisfied that the compliance table prepared by Evolution Planning dated 19 July 2024 demonstrates that the DA meets the requirements of the Housing SEPP as set out in the letter from Mr Tony Robb. I note the reference to Zone B2 in the final section of the table below. The relevant zone is Zone EI Local Centre but the assessment by Mr Robb remains correct.

SEPP (Housing) 2021 Chapter 3 Part 3 - Co-Living Housing	Proposal
Permissibility	“Shop-top housing” is permitted in the E1 zone and therefore “Co-living housing” is permitted under this Part.	✓
Non-discretionary development standards
FSR	2:1	1.79:1
Common Living Area - Min. 30sq.m + 2sq.m for each room in excess of 6 (min. dim. 3m) Required – 150sq.m	216sq.m	✓
Common Open Space -total area of 20% of the site area (min. dim. 3m) Required – 226.3sq.m	252sq.m	✓
Parking - Located in an accessible area (400m to bus) - 0.2 spaces / room Required: 58 x 0.2 = 11.6	Train and light rail services aside, an ‘accessible area’ is defined as “400m walking distance of a bus stop used by a regular bus service, within the meaning of the Passenger Transport Act 1990, that has at least 1 bus per hour servicing the bus stop between— (i)  6am and 9pm each day from Monday to Friday, both days inclusive, and (ii)  8am and 6pm on each Saturday and Sunday” The 309 bus service, with stops in close proximity of the site on Botany Road (approx. 120m to the north and 150m opposite to the south), services Redfern Station and the Port Botany Terminus at frequencies in excess of the definition above. The site is considered to be in an ‘accessible area’. 12 car spaces are required for the co-living housing (including 4 accessible spaces) for this component	✓
Standards
Max floor area, (ex. area, of private kitchen or bathroom facilities) - 25sq.m	Complies – Refer to DWG A04 Area Analysis - Rooms and Common Areas	✓
Min area single room 12sq.m	Complies – Refer to DWG A04 Area Analysis - Rooms and Common Areas	✓
Other rooms – 16sq.m	Complies – Refer to DWG A04 Area Analysis - Rooms and Common Areas
Min. lot size 800sq.m	1,131.5sq.m	✓
Manager - An appropriate workspace for the manager, either within the communal living area or in a separate space	An office is provided for the use of the duty manager in proximity to the main entry and entry to the common lounge.	✓
Business Zones – Ground Floor - No part of the ground floor of the co-living housing that fronts a street will be used for residential purposes unless another environmental planning instrument permits the use.	No accommodation is proposed at the ground level.	✓
Facilities - Adequate bathroom, laundry and kitchen facilities	Kitchenette and bathroom facilities are provided within each room. A common kitchen is proposed within the common lounge area and a separate common laundry is proposed.	✓
Occupancy - Max 2 occupants per room	The occupancy rates of each room, (not exceeding 2), is stipulated in the Plan and Management and consent condition No 165.	✓
Bikes and motorcycles - Adequate bicycle and motorcycle parking spaces.	62 bicycle and 14 motorbike spaces are provided deemed ‘adequate’ by the parties.	✓
Considerations
ADG – Part 3F - Building Separation - Visual Privacy Required - Side and rear – 6m to boundary (4 storey building)	North – The building is either built to the boundary like the neighbouring development with no openings or is setback 6.016m from the side boundary. This satisfies the design criteria of 12m building separation in the northern direction.	✓
The site to the east is zoned R2 and therefore the separation criteria from the eastern boundary is 9m.	East – The first three level is setback 6.048m from the eastern boundary and the fourth, uppermost level and a result of an amendment to the design, is setback 9m. The design amendment to only recess the upper level to the ‘compliant’ 9m was supported by the planning and urban design experts for the following reasons: • The east facing windows at the end of each corridor changed to fixed frosted glazing, and cowls added to high level windows, satisfying the objective of minimizing privacy impacts; • Reducing the perceived massing of the building and improving outlooks for those residents to the north; • By recessing the upper level only, a more appropriate transition in height would be achieved between the proposal and the maximum height available under the LEP for the neighbouring dwelling, which is presently single storey.	Satisfactory
Solar Access 3 hours 9am-3pm to at least 1 communal living area	The common room at ground level has a northerly orientation and as shown on DWGs A21-A23 will receive direct solar access throughout the day mid-winter, satisfying the criteria. The cantilevered part of the acoustic fence, along the northern boundary, is to comprise a translucent material to maximise solar access to the common area. Between 2-3 hours of direct solar access is available to the ‘satellite’ common rooms on each level facing Botany Road.	✓
Design - Compatible with the desirable elements of the character of the local area.	The locality, in particular the B2 zone at this location, is one which in undergoing transition. The project incorporates desirable elements of the existing character through providing setbacks and street wall heights which are consistent with the emerging character of the centre; the use of compatible materials, such as face brick; and, the proposed articulation and detailing across the facades to complement the local centre setting and the finer grain subdivision pattern0.	✓

5. Bayside Local Environmental Plan 2021 (BLEP 2021) is the current local environmental planning instrument that applies to the Site:

1. BLEP 2021 cl 2.3 enacts the land use table. The Site is zoned E1 Local Centre. Development for the purposes of commercial premises is permissible with consent. Development for the purposes of co-living housing is permissible with consent in Zone E1 pursuant to s 67 of the Housing SEPP, as development for the purpose of shop top housing is permissible within Zone E1.

2. The objectives of the E1 Local Centre are as follows:

Zone E1   Local Centre

1   Objectives of zone

•  To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

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

•  To ensure development within the zone does not detract from the economic viability of commercial centres.

•  To ensure the scale of development is compatible with the existing streetscape and does not adversely impact on residential amenity.

•  To ensure built form and land uses are commensurate with the level of accessibility, to and from the centre, by public transport, walking and cycling.

•  To create lively town centres with pedestrian focused public domain activated by adjacent building uses and landscape elements.

•  To accommodate population growth in the Rockdale town centre through high density residential uses that complement retail, commercial and cultural premises in the town centre.

3. BLEP 2021 cl 2.7 deals with demolition which requires consent for demolition. The parties agree to the demolition of existing structures as set out in the DA.

4. BLEP 2021 cl 4.3 deals with the Height of Buildings Map, and specifies a maximum height of 14m applies to the Site. The DA proposes a maximum height of 16.6m. The DA included a written request for a cl 4.6 variation of height standard prepared by Mr Robb of Evolution Planning dated 9 May 2023.

5. BLEP 2021 cll 4.3(1) and 4.6 provides –

4.6   Exceptions to development standards

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

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

Note—

The Environmental Planning and Assessment Regulation 2021 requires a development application for development that proposes to contravene a development standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).

4.3   Height of buildings

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

(a)  to ensure that building height is consistent with the desired future character of an area,

(b)  to minimise visual impact of new development, disruption of views, loss of privacy and loss of solar access to existing development,

(c)  to nominate heights that will provide an appropriate transition in built form and land use intensity.

6. The parties agree, and I am satisfied, that the written request by Mr Robb dated 20 June 2024, adequately justifies the proposed variance to the height of building development standard of 14m for the detailed reasons set out in Mr Robb’s written request, and in summary as follows:

1. “The height of the proposed building varies from being largely compliant, at the mid-eastern parts of the building, to exceeding the standard by up to 2.2m at the western part with relation to the roof-top open space and associated structures. The height of the proposed amended development is described as follows:

• SE corner of roof-top canopy – 16.2m (maximum building height);

• Stair and lift overrun roof – 16.0 – 16.1m

• Botany Road roof parapet/planter box wall – 14.3m

• Roof slab (eastern wing-mid-section) – 14.15m

• Roof slab edge (eastern end) – 14.05m”

2. The maximum height of the building is 16.2m occurring at the lift overrun. A variation to the 14m maximum building height standard of 13.75%.

2. The parts of the building which breach the height plane have negligible impact on the traditional shopfront streetscape, and the ‘main street’ character of Botany Road is preserved since the uppermost floor and other element which breach the standard are recessed back from the main building alignments (it is a corner development) and are not visible from the street.

3. The proposed development, particularly those parts which breach the height plane, do not disrupt views, impose privacy related impacts or unreasonably overshadow neighbouring properties.

4. The height and form of the proposed DA is similar to the development to the immediate north of the Site which includes a recessed residential level in breach of the height standard.

5. The proposed DA is considered to be consistent with, and will not hinder, the objectives of the height standard, and therefore it is submitted that compliance with the standard is both unreasonable and unnecessary in the circumstances of this case.

6. Under cl 4.6 of BLEP 2021 the public interest is considered to be satisfied where it can be demonstrated that the proposed DA is consistent with the objectives of the development standard and the zone. The objectives of Zone E1 Local Centre are set out above. The DA is consistent with the Zone E1 objectives by providing a mixed use commercial and residential development, and is located in an accessible area with frequent local bus services taking passengers to and from Redfern Train Station.

7. The proposed DA is also in the public interest because it would not be for the public benefit to strictly maintain the standard in this DA as it would lead to either poor amenity for the future residents (by locating common areas where there is no solar access or within a residential level with possible acoustic issues) or a significant unnecessary reduction in accommodation which would be a poor affordable housing outcome.

8. I accept the written request for a cl 4.6 of BLEP 2021 to vary the height standard from 14m to 16.2m.

7. BLEP 2021 cl 4.4 deals with the Floor Space Ratio (FSR) and specifies a FSR of 2:1 for the Site. The proposed DA complies with the FSR control as the DA has a FSR of 1.79:1.

8. BLEP 2021 cl 5.10 deals with Heritage Conservation. The Site is located within the Botany Township Heritage Conservation Area pursuant to Sch 5 Pt 2 of BLEP 2021. A Heritage Impact Statement (HIS) by Weir Phillips dated September 2021 was lodged with the DA. The effect of the proposed work under the DA is assessed in pars [6.2 and 6.3] of the HIS. Paragraph (7) of the HIS sets out the conclusions, which states inter alia:

“The proposed works will have an acceptable impact on the Conservation Area The existing building on the site is of uncertain date. It reads as an Interwar period building that has been altered externally and internally, reducing its contribution to the streetscape. It is located within a streetscape in which a number of buildings of a similar period have been demolished or are under consideration for demolition. The desired future character of this part of the conversation Area, as expressed by recent approvals, is for mixed use building of up to four storeys in height.

“The proposed new building has traditional shop front with splayed corner, parapet and awning at ground floor level similar to the existing building and others of its period within the Conservation Area. The upper levels are set back from the street front, in a similar manner to approved buildings further north. …. The upper levels of the building are articulated and finished in a similar manner to recently approved buildings in this part of the street and will thus sit comfortably within the developing streetscape.

“The proposed works will not physically impact on items in the vicinity of the site or block significant view corridors to/from them. The proposed works will have an acceptable impact on their setting because the proposed building is similar in massing, scale and character to recent approvals in the immediate vicinity of these items. It will not have undue prominence within the developing setting.”

9. James Phillips, Principal of Weir Phillips Heritage and Planning in his letter 21 June 2024 confirmed that the above advice remains the same in relation to the amended plans, particularly noting the development is of five storeys. The addition of a storey will have no further heritage impact.

10. BLEP 2021 cl 6.1 requires Council to consider any potential acid sulphate soils affectation. The Site is classed “4” in this respect. The DA will involve excavation in excess of 2m, and the potential presence of acid sulphate soils is addressed in the Geotechnical Report by Morrow dated 28 March 2023, which was lodged with the DA. The conclusions in Dirt Doctors Geotechnical Testing Services Report dated 17 December 2018 were:

“An acid sulfate soil assessment has been undertaken … to determine the presence of actual or potential acid sulfate soils, as the site is located within an area of ‘Low Probability’ of acid sulfate affects soils. Laboratory analysis suggests no acidic conditions ae present in the soil.

“Due to the findings of the investigation, Dirt Doctors considers preparation of an Acid Sulfate Soils Management Plan is not required…””

11. BLEP 2021 cl 6.2 deals with earthworks. The report of Morrow Geotechnics dated 28 March 2023 ref P2849_01 together with the report of Dirt Doctors in subpar [4(5)(j)] above do not anticipate any untoward subsurface conditions which would hinder the proposed development or introduce adverse impacts or ground water on neighbouring properties.

12. BLEP 2021 cl 6.3 deals with stormwater and water sensitive urban design. The parties rely on the Stormwater Design Plans in the Class 1 Application together with the Water Quality Report by Pyramid Consulting Engineers, particularly their report dated 26 March 2024. The requirements of cl 6.3 of BLEP 2021 have been met.

13. BLEP 2021 cl 6.8 deals with development in areas subject to aircraft noise. The Site is located within the ANEF 25 contour. The Koikas Acoustic Report dated 7 February 2024 and 1 March 2024 and draft condition 75 in Annexure A addresses the potential impact for aircraft noise. I am satisfied that the impact of aircraft noise has been addressed.

14. BLEP 2021 cl 6.9(2) identifies Botany Road as an active street frontage on the Active Street Frontages Map. The parties, and I, are satisfied that an active street frontage is provided in relation to the development in accordance with the objectives in cl 6.9(1).

5. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In accordance with s 4.16(1)(a) I shall uphold the appeal and grant consent to the DA subject to the conditions in Annexure A.

6. At the commencement of the conciliation conference pursuant to s 34(1) of the LEC Act, I attended the Site when nine individuals who had previously submitted objections to the DA, made oral submissions. I had previously read their submissions, and I listened to the oral submissions. I am satisfied that the Council has considered the objectors’ submissions, and that the amendments to the DA plans have been made with a view to resolving the issues raised by the objectors.

7. I note that the Report by Koikas Acoustics Pty Ltd dated 1 March 2024 confirms that updates to the architectural drawings have resulted in no adverse noise impacts on the acoustic amenities of neighbouring residential receivers, as previously referred to in the relevant noise criteria outlined in its report 7 February 2024.

8. I have not been requested, and I am not required, to consider the merits of the DA.

9. 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.

10. The Court notes that Bayside Council as the relevant consent authority has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application which must be carried out in accordance with the following approved plans and documents, except where the conditions of this consent expressly require otherwise.

Approved Plans
Plan No.	Revision No.	Plan Title.	Drawn By.	Date of Plan.
A04	M	Area Analysis – Rooms and Common Areas.	Meta – Arc	25/04/2024­­­
A05	M	Basement Level	Meta – Arc	25/04/2024­­­
A06	M	Ground Level	Meta – Arc	25/04/2024­­­
A07	M	First Level	Meta – Arc	25/04/2024­­­
A08	M	Second Level	Meta – Arc	25/04/2024­­­
A09	M	Third Level	Meta – Arc	25/04/2024­­­
A10	M	Roof Level	Meta – Arc	25/04/2024­­­
A10A	M	Parapet Level	Meta – Arc	25/04/2024­­­
A11	M	West Elevation	Meta – Arc	25/04/2024­­­
A12	M	South Elevation	Meta – Arc	25/04/2024­­­
A13	M	East Elevation	Meta – Arc	25/04/2024­­­
A14	M	North Elevation	Meta – Arc	25/04/2024­­­
A15	M	Section A-A	Meta – Arc	25/04/2024­­­
A16	M	Section B-B	Meta – Arc	25/04/2024­­­
A17	M	Finishes Schedule	Meta – Arc	25/04/2024­­­
A18	M	Perspective Views	Meta – Arc	25/04/2024­­­
Landscape Plans
L/01	E	Ground Floor	Aspect Design	09/04/2024
L/02	E	Level 1 - Landscape	Aspect Design	09/04/2024
L/03	E	Level 3 - Landscape	Aspect Design	09/04/2024
L/04	E	Level 4 - Landscape	Aspect Design	09/04/2024
L/05	E	Landscape Details	Aspect Design	09/04/2024
Stormwater Plans
S0	F	General Notes	Pyramid Engineering Consult	26/03/2024
S1	F	Sediment And Erosion Control Plan	Pyramid Engineering Consult	26/03/2024
S2	F	Basement Floor Drainage Plan	Pyramid Engineering Consult	26/03/2024
S3	F	Ground Floor Drainage Plan	Pyramid Engineering Consult	26/03/2024
S4	F	Stormwater Sections & Details	Pyramid Engineering Consult	26/03/2024
S5	F	Water Quality Report	Pyramid Engineering Consult	26/03/2024
Technical Drawing
05.0157 Sheet 1 of 3	B	CTX45-HD Turntable – General Arrangements	Australians Turntables	15/09/2023
05.0157 Sheet 2 of 3	B	CTX45-HD Turntable – General Arrangements	Australians Turntables	15/09/2023
05.0157 Sheet 3 of 3	B	CTX45-HD Turntable – General Arrangements	Australians Turntables	15/09/2023
Approved Documents
Document Title	Version No.	Prepared By	Date of Document
Geotechnical Investigation Report Residential Development, 1449-1453 Botany Road, Botany NSW’ ref: P2849_01	Morrow Geotechnics	28 March 2023
Stage 1 and 2 Site Contamination Investigation Report 1451-1453 Botany Road, Botany NSW ref: Report G21060BOT-R01F	Geo-Environmental Engineering	16 September 2021
Acid Sulfate Soils 1449 Botany Road, Botany NSW ref: Report DDE-429_1	Dirt Doctors Geotechnical Testing Services	17 December 2018
Operational Noise Emission - 1449-1453 Botany Road, Botany.	Koikas Acoustic Pty Ltd	1 March 2024
Boundary Fence RFI - 1449-1453 Botany Road, Botany.	Koikas Acoustic Pty Ltd	19 March 2024
Cora Bike Rack	Rev 7.00	Cora Bike Rack - Australia’s Bike Parking Experts	Dec 2020
Plan of Management Co-Living Housing 1449 1449 – 1453 Botany Road Botany NSW	2	Evolution Planning Pty Limited	18 January 2024

11. Subject to the Applicant filing a copy of the architectural, landscape and stormwater plans and documents referred to in par [10] above, pursuant to s 34(3) of the LEC Act, and s 4.16(1) of the EPA Act, I shall grant consent to the DA subject to conditions in Annexure A.

12. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA 2023/144 for demolition of existing buildings and construction of a mixed use commercial and co-living housing development, at premises known as 1449 Botany Road, Botany, subject to the conditions of consent in Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development application No. DA 2023/144 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $15,000.

4. The Applicant is to file a set of architectural, landscape and stormwater plans and documents referred to in paragraph [10] of this judgment, within seven days of these Orders.

M Peatman

Acting Commissioner of the Court

Amended Annexure A (570936, pdf)

**********

Amendments

02 April 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure A”.

Decision last updated: 02 April 2025