Thirdi Bayswater Pty Ltd v The Council of the City of Sydney

[2025] NSWLEC 1454

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Thirdi Bayswater Pty Ltd v The Council of the City of Sydney [2025] NSWLEC 1454

Hearing dates:

Conciliation conference held on 19 June 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent Council’s costs thrown away as a result of the most recent amendments made to the Development Application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development Application D/2024/231 as amended, for demolition of existing structures and construction of an 8-storey mixed-use building comprising 2 retail tenancies, 1 x 2-bedroom apartment and 12 x 3-bedroom apartments, car parking at the lower ground and 2 basement levels, rooftop communal open space, associated landscaping works and vehicle access from Ward Avenue at 51-57 Bayswater Road, Rushcutters Bay is approved, subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application — mixed use development – conciliation conference — agreement between the parties — orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 144, 145, 147

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), s 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2 ss 2.98, 2.99, 2.100

Sydney Local Environmental Plan 2012, cll 2.1, 1.9A, 2.7, 4.3, 4.6, 5.10, 5.21, 6.21C, 6.21D, 7.5, 7.7, 7.13, 7.14, 7.19, 7.20

Texts Cited:

City of Sydney Stormwater Drainage Manual 2020

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Sydney Community Engagement Strategy and Community Participation Plan 2024

Sydney Development Control Plan 2023

Category:

Principal judgment

Parties:

Thirdi Bayswater Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
A Stipcevic (Solicitor)(Respondent)

Solicitors:
Mills Oakley
City of Sydney Council (Respondent)

File Number(s):

2024/00258056

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the Council of the City of Sydney’s (Council) deemed refusal of development application D/2024/231, which sought consent for the demolition of the existing building and construction of an eight storey mixed-use development at 51-57 Bayswater Road, Rushcutters Bay (site).

2. The development application as amended comprises:

1. two retail tenancies at the lower ground level;

2. thirteen three-bedroom apartments;

3. two basement levels accommodating 14 car parking spaces (including one accessible space) and one service bay; and

4. associated landscaping and infrastructure works

(Development Application).

3. 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 19 June 2025. I presided over the conciliation conference.

4. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 19 June 2025 (Agreement). The terms include the following further amendmetns to the plans:

1. revision of the apartment mix from 13 x 3-bedroom apartments to 1 x 2-bedroom apartment and 12 x 3-bedroom apartments;

2. provision of more solid to void proportions to the west elevation;

3. reduction and relocation of service areas at the lower ground level, and an increase to the size of the retail tenancies;

4. relocation of the glass line of the retail tenancies to the Bayswater Road boundary and provision of at grade entry points to provide an active street frontage;

5. provision of a simplified awning to Bayswater Road;

6. relocation of the residential waste room to the southern portion of the lower ground level and collection of bins from Ward Avenue;

7. an increase in the height of the ground and lower ground levels to accommodate flooding (no change to overall building height);

8. a decrease in floor-to-floor heights at Levels 1-5;

9. provision of planter boxes and security rods in unit G01 to bedroom 02 and study (which was previously a 3^rd bedroom) facing Ward Avenue;

10. inclusion of a passive recreation space adjacent to the deep soil zone added on Level 1 and conversion of deep soil along Ward Avenue to permeable paving;

11. removal of the private open space courtyard on Level 1;

12. lowering of the deep soil zone adjacent to the eastern boundary to ensure adequate clearance for the air vents within the neighbouring wall to 59 Bayswater Road;

13. provision of a stormwater drainage arrangement to accommodate the neighbouring downpipes to 59 Bayswater Road;

14. provision of fixed toughened glass to external windows within 3m of a boundary floor fire protection; and

15. reconfiguration of car parking spaces and bicycle parking spaces, including relocation of 2 resident car parking spaces to the lower ground level and provision of additional residential storage cages at the basement levels.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant consent to the Development Application.

6. After a consideration of the documentation filed with the s34 agreement and the parties joint jurisdictional statement I am satisfied that the parties’ decision is lawful for the following reasons.

Owner’s consent

7. The site is subject to Strata Title SP12534. As such, landowner’s consent for the communal property has been provided by the strata body corporate (Tab 3 of the Class 1 Application).

8. Individual landowner’s consent from each strata allotment has been provided for all allotments (Tab 3 of the Section 34 Agreement Bundle).

9. Accordingly, I am satisfied the Amended Application complies with s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

Public notification

10. The Development Application was originally notified for a period of 28 days between 12 April 2024 and 11 May 2024. A total of 150 submissions were received during this period. Of these, 65 submissions objected to the development and 85 were in support of the development.

11. The Development Application was renotified for 14 days from 5 May to 20 May 2025. A total of 18 submissions were received. Of these, 16 submissions objected to the development and 2 were in support of the development.

12. As the Amended Application does not result in any significant additional environmental impact the Council is of the view that it is not required to be re-notified under the City of Sydney Community Engagement Strategy and Community Participation Plan 2024.

13. That said, the Council has emphasised that all public submissions have been taken into account in the redesign of the Amended Application.

State Environmental Planning Policy (Housing) 2021

Chapter 4 – Design of residential apartment development

14. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) provides a series of planning controls and mandatory considerations, aimed at regulating the design of residential apartment development. Pursuant to s 144(2)(c), Ch 4 of the Housing SEPP applies to mixed use development with a residential accommodation component that does not include boarding houses or co-living housing.

15. Section 145(2) requires development applications to be referred to a design review panel. The Development Application was originally referred to the City of Sydney Design Advisory Panel – Residential Subcommittee on 4 June 2024. The recommendations of the design review panel have been taken into consideration in the design of the Amended Application.

16. In accordance with s 147 of the Housing SEPP:

1. Subsection (1)(a) of the Housing SEPP and s 29 of the EPA Regulation – the Applicant has provided an amended statement addressing the design quality of the Amended Application in accordance with the design quality principles (Tab 5 of the s 34 agreement Bundle).

2. Subsection (1)(b) – the Applicant has provided an amended statement addressing the Development Application’s consistency with the Apartment Design Guide (Tab 5 of the s 34 agreement Bundle).

3. Subsection (1)(c) – as outlined above, the recommendations provided by the design review panel have been considered.

17. For the reasons outlined I am satisfied that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria, as required under s 147 of the Housing SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 2 – Vegetation in non-rural areas

18. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) details provisions regarding the preservation and management of vegetation in non-rural areas.

19. The site is devoid of landscaping and the Amended Application does not seek to remove any trees. The Amended Application, however, will provide appropriate landscaping (see landscape plans at Tab 25 of the s 34 Agreement Bundle).

Chapter 6 – Water catchments

20. The site is mapped as being within the ‘Sydney Harbour Catchment’ which is a regulated catchment for the purposes of Ch 6 of the Biodiversity SEPP. The site is not mapped as being within the foreshores or waterways area.

21. Pursuant to s 6.6 – water quality and quantity the consent authority must consider the matters in s 6.6(1)(a)-(g). The evidence is that the Amended Application includes stormwater management and mitigation measures that will, at a minimum maintain the existing water flow patterns, water quality, hydrological, ecological and geomorphological processes measures as detailed in the amended Stormwater Plans including the Erosion and Sediment control measures, on-site detention (OSD) and stormwater filtration measures prepared by NDY dated 23 May 2025 (see Tab 26 of the s 34 Agreement Bundle).

22. Pursuant to s 6.6(2) the consent authority must be satisfied that the Amended Application ensures:

1. Subsection (2)(a) “the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial” – the evidence is that the Amended Application provides erosion and sediment control and stormwater capture, storage and filtration measures in accordance with the water filtration requirements set out in the Sydney Development Control Plan 2023 (Sydney DCP) and the City of Sydney Stormwater Drainage Manual (see Tab 26 of the s 34 Agreement Bundle). The parties submit and I am satisfied on the evidence before me that quality stormwater discharged from the site as a result of the Amended Application will be as close as possible to neutral or beneficial.

2. Subsection (2)(b) “the impact on water flow in a natural waterbody will be minimised” – the site does not result in the direct discharge of stormwater into a natural waterbody. The Stormwater management provisions provide for the capture, storage via an OSD tank and discharge of stormwater into Bayswater Road in accordance with the discharge rates set out in the Sydney DCP.

23. Pursuant to s 6.7 – Aquatic Ecology the consent authority must consider the matters in subs (1)(a)-(f). The evidence is that the Amended Application will not result in a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation. The evidence is that the Amended Application does not result in the clearing of riparian vegetation, will minimise impacts associated with erosion and sedimentation, will not impact on wetlands or aquatic ecology and does not adjoin a natural waterbody.

24. Pursuant to s 6.7(2) the consent authority must be satisfied that:

1. Subsection (2)(a) “the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development” – the evidence is that the Amended Application suitably manages stormwater impacts and does not result in the clearing of vegetation and as such will not have an adverse impact on terrestrial, aquatic, or migratory animals or vegetation;

2. Subsection (2)(b) “the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves” – the evidence is that the Amended Application is not located on or in close proximity to an aquatic reserve and as such will not have an adverse impact.

3. Subsection (2)(c) “if a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994 is required in relation to the clearing of riparian vegetation—the approval or permit has been obtained” – the Amended Application does not require an aquifer interference approval (see section 3.1 of the Finite Element Analysis at Tab 22 of the s 34 Agreement Bundle).

4. Subsection (2)(d) “the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised” – the site does not abut a natural waterbody and provides stormwater filtration and erosion and sediment control measures to ensure protection against sedimentation of waterbodies.

5. Subsection (2)(e) “the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised” – the site does not abut a natural waterbody and provides stormwater filtration and erosion and sediment control measures to ensure protection against sedimentation of waterbodies.

25. Pursuant to s 6.8(1) – Flooding the consent authority must consider the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems. The parties submit and I am satisfied on the evidence that the Amended Application will not result in adverse impacts on flood storage or pollutants, for the reasons set out in the Amended Flooding Management Report prepared by SGS dated 6 June 2025 at Tab 15 of the s 34 Agreement Bundle.

26. Pursuant to s 6.8(2) the consent authority must be satisfied that the Amended Application will not:

1. Subsection (2)(a) “if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody” – the evidence is that the Amended Application provides an OSD tank at RL38.02, being above the 1% AEP maximum level of RL34.25. Accordingly, the OSD system will not be inundated in a flooding event.

2. Subsection (2)(b)“have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems” – the evidence is that the Amended Application will not result in a significant change in flood storage or behaviour.

27. Pursuant to s 6.9 I accept that the Amended Application is not located on or adjacent to or with access to a recreation area. Pursuant to s 6.9(2) the Amended Application will not reduce access to public waterbodies or impact on the foreshore.

28. Pursuant to s 6.10 I accept that the Amended Application will not result in any adverse environmental impacts on downstream or adjacent Council areas

State Environmental Planning Policy (Resilience and Hazards) 2021

29. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should it be required to do so.

30. In accordance with s 4.6(3), the Applicant has prepared a Preliminary Site Investigation dated 13 March 2024 (PSI) (Tab 17 of Class 1 Application) and a Detailed Site Investigation dated 15 August 2024 (DSI) (Tab 7 of Exhibit MN-1). The PSI found that there was potential for unknown contaminants in the near surface soils. The DSI undertook the completion of a site investigation, the drilling of eight boreholes and sampling and laboratory testing of soil and groundwater samples. The DSI confirms that no sources of contamination were observed and that the site is suitable for the proposed land use without any need for further assessment, remediation or validation (see p 7, Tab 7 of Exhibit MN-1).

31. For the reasons identified, I am satisfied that the site can be made suitable for the proposed development and the Amended Application satisfies s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

32. Chapter 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) provides a series of planning controls and mandatory considerations, aimed at facilitating the effective delivery and management of public infrastructure throughout NSW.

33. The site is located directly above a rail tunnel owned by Transport for NSW (TfNSW) (the Eastern Suburbs & Illawarra Line).

34. Pursuant to s 2.98(1)(a) the development is likely to have an adverse effect on rail safety due to its proximity to the rail corridor and as such has been referred to TfNSW. The requirements under s 2.98 are the same as those outlined below in s 2.99(2).

35. The Amended Application involves excavation to a depth of at least 2m above a rail corridor (s 2.99(1)(a)). It also comprises excavation within 25m (measured horizontally) of the ground directly above an underground rail corridor (s 2.99(1)(d)) and is thereby subject to the provisions in s 2.99 of the Transport SEPP.

36. The Applicant has prepared the following material in relation to the Rail Corridor:

1. Risk Assessment prepared by Thirdi dated 29 May 2025;

2. Finite Element Analysis prepared by Morrow dated 29 May 2025;

3. Footings Loading Plan and Section Sheet prepared by ADG dated 6 May 2025;

4. Construction Management Plan prepared by Lords Group dated 30 October 2024;

5. Monitoring Plan for Proposed Excavation over Rail Corridor prepared by Morrow dated 27 September 2024; and

6. Structural Design Report prepared by ADG dated 29 May 2025.

37. I am satisfied that the matters in ss 2.99(2) and 2.98(2) have been addressed for the following reasons:

1. Subsection (2)(a) – the original Development Application was referred to TfNSW following the lodgement of the application and the Amended Application was provided to TfNSW on 14 May 2025.

2. TfNSW provided concurrence on 17 June 2025 (dated 16 June 2025).

3. Subsection (2)(b) – the parties inform me and I accept that the response from TfNSW and the relevant guidelines have been taken into consideration.

4. TfNSW provided concurrence on 17 June 2025. The concurrence was granted subject to the conditions of consent that are included in Schedule 2 of the Conditions of Consent.

5. Subsection (3) – as concurrence of the Rail Authority (TfNSW as delegate for Sydney Trains) has been given on 17 June 2025 the Court has power to grant consent to the Amended Application.

6. Subsection (4) – in granting concurrence TfNSW has considered the matters in subs (4) including the potential effects of the development on the safety and structural integrity and safe operation of the rail corridor and the mitigation measures taken to avoid or minimise potential effects, as set out in the material provided by the Applicant (identified above at [36]).

38. Section 2.100 of the Transport SEPP requires the consent authority to consider the impacts of noise and vibration from rail corridors where it considers the Amended Application is likely to be adversely affected by rail noise or vibration. Accepting that the rail corridor is located approximately 9m below the basement of the development, the parties are satisfied and I accept having regard to the expert assessments in the documentation that the Amended Application is not likely to be adversely affected by rail noise or vibration.

State Environmental Planning Policy (Sustainable Buildings) 2022

39. In compliance with s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), the Applicant has prepared and provided an amended BASIX Certificate (see Tab 17 of the s 34 Agreement Bundle).

Sydney Local Environmental Plan 2012

Clause 2.1 – Land Use Zones

40. The site is zoned MU1 (Mixed Use) pursuant to the land zoning map. Mixed use development is permitted with consent in this zone.

41. The consent authority may provide development consent to mixed use development after consideration of the zoning objectives:

•  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 ensure land uses support the viability of nearby centres.

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

Clause 1.9A – Suspension of covenants, agreements and instruments

42. The site is subject to a historical covenant (H348922) that restricts the erection any building within 10 feet of the southern boundary other than buildings 10 feet in height. The lots benefited by the covenant are now lots on the eastern side of Ward Avenue and 52-54 Kings Cross Road.

43. Pursuant to cl 1.9A(1), if a covenant restricts the carrying out of development that is in accordance with the Sydney Local Environmental Plan 2012 (SLEP) or with a consent granted under the EPA Act, the covenant does not apply to the extent necessary to serve that purpose.

44. The covenant is not a matter excluded from cl 1.9A as listed in cl 1.9A(2).

Clause 2.7 – Demolition required development consent

45. Demolition works are permissible with consent under cl 2.7 of the SLEP.

Clause 4.3 – Height of buildings

46. The site is subject to a maximum building height control of 35 m pursuant to cl 4.3 of the SLEP. The Amended Application, has a maximum height of 29.73 m, which is compliant with the maximum height control.

Clause 5.10 – Heritage conservation

47. The site is not identified as a heritage item however it is located within the Elizabeth and Rushcutters Bay Heritage Conservation Area (HCA) (C20). Accordingly, development consent is required for the demolition of the existing structures on the site pursuant to cl 5.10(2)(a)(iii). Development consent is also required for the erection of the proposed building within the HCA, pursuant to cl 5.10(2)(e)(i) of the SLEP.

48. Pursuant to cl 5.10(4) the consent authority must consider the effect of the proposed development on the heritage significance of the item or area concerned. The Applicant has prepared a Heritage Impact Assessment report prepared by NDY dated 28 May 2025 (see Tab 12 of the Class 1 Application) and an addendum Heritage Assessment Statement prepared by Curio Projects dated 26 March 2025 (see Tab 8 of Exhibit MN-1). The parties are satisfied, and I accept that the Amended Application will not have a significant adverse impact on the heritage significance of the HCA or surrounding heritage items.

Clause 5.21 – Flood planning

49. The site is located within the flood planning area and as such is subject to cl 5.21. An assessment has been made against the matters which the consent authority must be satisfied under cl 5.21(2) as well as the matters for consideration contained within cl 5.21(3). A Flood Management Plan is part of the application (at Tab 15 of the s 34 Agreement Bundle).

50. With respect to cl 5.21(2) I am satisfied on the evidence before me that the matters in cl 5.21 have been considered and satisfied where appropriate for the following reasons:

1. is compatible with the flood function of the land as the site is located within a medium flood risk zone – pursuant to subs (2)(a);

2. will not adversely affect flood behaviour as it is confined to the road reserve and the development will not alter flood behaviour – pursuant to subs (2)(b);

3. will not impact on safe occupation or evacuation of people as the site is not inundated by flood waters and safe evacuation is available via Ward Avenue – pursuant to subs (2)(c);

4. incorporates measures to manage risk to life through safe evacuation and the location of building levels are above the flood level – pursuant to subs (2)(d); and

5. will not adversely affect the environment as flood waters are contained to existing improved areas such as Bayswater Road and stormwater measures are implemented to manage filtration of stormwater – pursuant to subs (2)(e).

51. The parties are satisfied and I accept that the Amended Application has adequately considered the matters in cl 5.21 of the SLEP.

Clause 6.21C – Design excellence

52. Pursuant to cl 6.21C a consent authority must not grant consent to a development unless it is satisfied that the development application exhibits design excellence. A statement addressing the matters in cl 6.21C(2) has been prepared by Woods Bagot dated 23 May 2025 and is provided at Tab 5 of the s 34 Agreement Bundle.

53. After a consideration of the statement I am satisfied that the Amended Application exhibits design excellence because:

1. It offers a high standard of architectural design (cl 6.21C(2)(a));

2. has been designed to have a positive interface with both Bayswater Road and Ward Avenue (cl 6.21C(2)(b));

3. it will not detrimentally impact on any view corridors (cl 6.21C(2)(c)); and

4. it satisfactorily addresses the matters in cl 6.21C(2)(d).

54. The parties agree and I accept that the Amended Application achieves design excellence under cl 6.21C.

Clause 6.21D – Competitive design process

55. Pursuant to cl 6.21D(1)(a)(ii) a competitive design process is required to be held for development that exceeds 25m in height.

56. The Amended Application has a maximum height of 29.73m and as such is captured by cl 6.21D(1)(a)(ii). Notwithstanding this, pursuant to cl 6.21D(2) a competitive design process is not required if the consent authority is satisfied that the process would be unreasonable or unnecessary in the circumstances. A statement outlining why a competitive design process is unreasonable or unnecessary in the circumstances is provided by Ethos Urban dated 5 June 2025 at Tab 4 of the s 34 Agreement Bundle which includes the following reasons:

1. The Amended Application achieves design excellence;

2. The elements of the Amended Application that exceed the 25m trigger point do not detract from the excellence of the design and contribute to the articulated and cohesive design;

3. The proposed design has been derived from a detailed urban and architectural analysis; and

4. The elements of the building that exceed the 25m height provision are minor. 

57. For the reasons outlined in the Ethos Urban report, as submitted by the Council I am satisfied that a competitive design process is unreasonable or unnecessary in this instance.

Clause 7.5 – Residential flat buildings, dual occupancies and multi dwelling housing

58. The site is mapped Land Use and Transport Category B pursuant to the Land Use and Transport Integration Map.

59. Clause 7.5(1)(b)(iv) provides for each 3 or more bedroom dwelling a maximum of 1.1 car parking spaces are required. The Amended Application provides 13 x 3-bedroom apartments and provides 14 car parking spaces (see DA2201-2203 at Tab 28 of the s 34 Agreement Bundle).

60. Accordingly, the Amended Application complies with the car parking requirements in cl 7.5(1)(b)(iv).

Clause 7.7 Retail premises

61. The site is mapped as Category F on the Public Transport Accessibility Level Map. Pursuant to cl 7.7(2)(b) a maximum of 1 parking space per 50m² of retail gross floor area (GFA) is permitted. The Amended Application provides 97.1m² of retail GFA and has 0 retail parking spaces (see DA2701 at Tab 28 of the s 34 Agreement Bundle).

Clause 7.13 Contribution for purpose of affordable housing

62. The site is mapped as residual lands on the Locality and Site Identification Map. Clause 7.13 applies as the Amended Application comprises the erection of a new building with a GFA of more than 200m² (cl 7.13(1)(a)(i)).

63. Pursuant to cl 7.13(2) a condition requiring contribution to affordable housing may be imposed.

64. Condition 17 of the agreed Conditions of Consent requires the Applicant to pay a monetary contribution towards the provision of affordable housing to the Council prior to the issue of a Construction Certificate.

Clause 7.14 – Acid sulfate soils

65. The site is mapped as Class 5 Acid Sulfate Soils (ASS) pursuant to the Acid Sulfate Soils Map.

66. Pursuant to cl 7.14(2) development consent is required for works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD and by which the watertable is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land.

67. The site is located within approximately 350m of adjacent Class 2 ASS however the evidence is that it is not expected to result in the lowering of the watertable on the site (see section 3.1 of the Finite Element Analysis prepared by Morrow Geotechnics dated 29 May 2025 at Tab 22 of the s 34 Agreement Bundle) or on the adjacent Class 2 ASS and as such development consent is not required.

Clause 7.19 – Demolition must not result in long term adverse visual impact

68. The Amended Application seeks consent for demolition and consent for the redevelopment of the site through the erection of a new building. The application includes adequate measures (hoardings) which I accept will mitigate potential adverse visual impacts as a result of demolition in accord with cl 7.19(a) and (b).

Clause 7.20 – Development requiring or authorising preparation of a development control plan

69. The Amended Application involves the erection of a new building and as such is subject to cl 7.20 of the SLEP. Clause 7.20(2)(b) requires the preparation of a Development Control Plan (DCP) for the site as the Amended Application seeks consent for the erection of a building on the site in excess of 25m above ground level. Notwithstanding this, cl 7.20(3) provides that the preparation of a DCP is not required if the consent authority is satisfied that it would be unreasonable or unnecessary in the circumstances. A statement outlining why a DCP is unreasonable or unnecessary is provided by Ethos Urban dated 5 June 2025 at Tab 4 of the s 34 Agreement Bundle including:

1. The Amended Application nonetheless provides for and considers the matters to be included in a DCP provided under cl 7.20(4);

2. The Amended Application achieves design excellence;

3. The proposed design has been derived from a detailed urban and architectural analysis; and

4. The elements of the building that exceed the 25m height provision are minor. 

70. For the reasons outlined in the Ethos Urban report, as submitted by the Council I am satisfied that the preparation of a DCP is unreasonable or unnecessary in this instance.

The Clause 4.6 Written Request

Clause 4.4 – Floor Space Ratio

71. The amended proposal exceeds the 3:1 FSR limit in cl 4.4(2) of the SLEP, with a maximum FSR of 3.18:1.

72. The Applicant’s seeks pursuant to cl 4.6 of the SLEP a variation of this standard and relies on the request prepared by Ethos Urban dated 16 June 2025.

73. The Court, on appeal, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(3)(a) and (b), being:

(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.

74. The MU1 zone objectives can be found above at [41].

75. For convenience, the objectives of the FSR standard in cl 4.4 SLEP are reproduced below:

4.4   Floor space ratio

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

(a)  to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b)  to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d)  to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

76. For the reasons set out in the request, I am satisfied that the development is consistent with objectives (a)-(d) of the FSR standard. Therefore, it follows that compliance with that standard is unreasonable and unnecessary in the circumstances of this case.

77. In forming that assessment, I accept the evidence and the Council’s submission that the development will:

1. provide residential and retail facilities that meet the anticipated development needs for the foreseeable future;

2. result in an appropriate density and built form outcome and will not result in unacceptable vehicle or pedestrian traffic;

3. provides for an intensity of development that is commensurate with the capacity of existing and planned infrastructure; and

4. be compatible with the desired future character of the area with respect to its bulk and scale

78. The parties agree and I accept that sufficient environmental planning grounds have been identified to justify contravening the development standard in the circumstances of this case for the following reasons:

1. The development will provide residential and retail facilities that meet the anticipated development needs for the foreseeable future;

2. The development will result in an appropriate density and built form outcome and will not result in unacceptable vehicle or pedestrian traffic;

3. The proposed development provides for an intensity of development that is commensurate with the capacity of existing and planned infrastructure; and

4. The proposed development (inclusive of the FSR variation) is compatible with the desired future character of the area with respect to its bulk and scale.

79. Accepting that there is no statutory or environmental planning impediment to the approval of a FSR contravention in this instance the proposed variation to the FSR standard is approved.

Conclusion and orders

80. As the parties’ decision is within power I now dispose of the proceedings in accordance with that decision.

81. In forming that view, I am not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

82. The Court notes that:

1. Council as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application D/2024/231 to include the documents listed below:

E	Issue	Plan Title	Dated
Amended Architectural Plans
DA0000	-	Cover sheet	-
DA1000	02	Drawing list	12.06.2025
DA1001	7	Site analysis	23.05.2025
DA1002	7	Existing site plan	23.05.2025
DA1003	7	Proposed site plan	23.05.2025
DA1010	7	Site photos	23.05.2025
DA1050	7	Demolition plan	23.05.2025
DA1102	7	Photomontage - Ward Ave	23.05.2025
DA1103	7	Photomontage – corner Bayswater Rd & Ward Ave	23.05.2025
DA1104	7	White card renders	23.05.2025
DA2201	10	Basement 2 plan	12.06.2025
DA2202	10	Basement 1 plan	12.06.2025
DA2203	11	Lower ground plan	12.06.2025
DA2210	9	Ground level	12.06.2025
DA2211	8	Level 1	23.05.2025
DA2213	8	Levels 2 - 5	23.05.2025
DA2216	8	Level 6 - penthouse	23.05.2025
DA2217	9	Rooftop plan	12.06.2025
DA2218	9	Roof plan	12.06.2025
DA2700	4	TFA	17.06.2025
DA2701	9	GFA	12.06.2025
DA2702	9	Storage	12.06.2025
DA2703	7	Solar access and cross vent	23.05.2025
DA2704	7	Deep soil and planting areas	23.05.2025
DA2705	8	Adaptable layouts	29.05.2025
DA2710	7	Adaptable layouts	23.05.2025
DA2711	7	Lha layouts	23.05.2025
DA2715	7	Public and private delineation Plans	23.05.2025
DA2750	7	Materials and finishes	23.05.2025
DA2755	7	Doors and gates	23.05.2025
DA2756	7	Neighbour interface 59 Bayswater Rd	23.05.2025
DA2757	7	Retail and public domain Interface	23.05.2025
DA2760	7	Height plane diagram (bettar- (existing)	23.05.2025
DA2761	8	Height plane diagram (bettar proposed)	29.05.2025
DA2762	7	Height plane diagram (merman existing)	23.05.2025
DA2763	8	Height plane diagram (merman proposed)	29.05.2025
DA2764	8	Height plane study	29.05.2025
DA2765	2	Height plane study	29.05.2025
DA2766	9	Height plane study	03.06.2025
DA2767	2	Height plane study	29.05.2025
DA3010	7	Elevation - north (Bayswater Rd)	23.05.2025
DA3020	7	Elevation - west (Ward Ave)	23.05.2025
DA3030	7	Elevation - east	23.05.2025
DA3040	7	Elevation - south	23.05.2025
DA3101	9	Long section	03.06.2025
DA3102	9	Short section	03.06.2025
DA3103	9	Long section 2	03.06.2025
DA3104	1	Short section 2	29.05.2025
DA7001	7	Jun sun eye view - proposed	23.05.2025
DA7002	7	Jun sun eye view - proposed	23.05.2025
DA7003	7	Jun sun eye view - proposed	23.05.2025
DA7004	1	Jun sun eye view Supplementary information	23.05.2025
DA7005	7	Jun sun eye view Supplementary information	23.05.2025
DA7011	7	Jun sun eye view - existing	23.05.2025
DA7012	7	Jun sun eye view - existing	23.05.2025
DA7013	7	Jun sun eye view - existing	23.05.2025
DA7109	7	Solar access - 52 kings cross Rd - north	23.05.2025
DA7110	7	Solar access - 52 Kings Cross Rd - north	23.05.2025
DA7111	7	Solar access - 52 Kings Cross Rd - north	23.05.2025
DA7112	7	Solar access - 52 Kings Cross Rd – north	23.05.2025
DA7113	7	Solar access - 52 Kings Cross Rd – north	23.05.2025
DA7114	7	Solar access - 52 Kings Cross Rd – north	23.05.2025
DA7115	7	Solar access - 52 Kings Cross Rd – north	23.05.2025
DA7116	7	Solar access - 52 Kings Cross Rd – north	23.05.2025
DA7117	7	Solar access - 52 Kings Cross Rd - north	23.05.2025
DA7118	7	Solar access - 67 Bayswater Rd - north	23.05.2025
DA7119	7	Solar access - 67 Bayswater Rd- north	23.05.2025
DA7120	7	Solar access - 67 Bayswater Rd- north	23.05.2025
DA8000	7	Proposed - solar compliance of POS	23.05.2025
DA8001	7	Proposed - solar compliance of POS	23.05.2025
DA8002	7	Proposed - solar compliance of COS	23.05.2025
DA8010	3	View analysis 52 Kings Cross Road	23.05.2025
DA8011	3	View analysis 52 Kings Cross Road	23.05.2025
DA8012	1	View analysis 3 Kings Cross Road	23.05.2025
Amended Landscape Softworks Plans
L-400	E	Planting Schedule	13.06.2025
L-401	E	Softworks Plan Lower Ground & Ground Floor	13.06.2025
L-402	E	Softworks Plan Level 1	13.06.2025
L-403	E	Softworks Plan Levels 2 - 5 Typicals	13.06.2025
L-404	E	Softworks Plan Levels 6	13.06.2025
L405	E	Softworks Plan Rooftop	13.06.2025
Amended Stormwater Plans
C-0000	P03	Cover Sheet	23 May 2025
C-0001	P03	General Notes	23 May 2025
C-1000	P03	Civil Layout Plan – Ground	23 May 2025
C-1001	P03	Civil Layout Plan – Lower Ground	23 May 2025
C-1002	P03	Civil Layout Plan – Basement B1	23 May 2025
C-1003	P03	Civil Layout Plan – Basement B2	23 May 2025
C-2000	P03	Erosion and Sediment Control Plan	23 May 2025
C-3000	P03	Typical Details	23 May 2025
C-4000	P03	Civil Section 1	23 May 2025
C-4001	P03	Civil Section 2	23 May 2025
C-4002	P03	Civil Section 3	23 May 2025
Amended Survey Plan
52170 004DT	D	Site Survey Plan	21 May 2025
Amended Reports
Schedule of Amendments prepared by Woods Bagot			12 June 2025
Owners Consent Documents			Various
Competitive Design Process/Development Control Plan Waiver Request prepared by Ethos Urban			5 June 2025
Amended Design Verification Statement and ADG Assessment prepared by Woods Baggot			18 June 2025
Applicants Response to objections prepared by Ethos Urban			17 June 2025
Transport and Parking Impact Assessment prepared by Transport Strategies			May 2025
View Impact Assessment prepared by Ethos Urban dated			3 June 2025
Clause 4.6 Variation Request Floor Space Ratio prepared by Ethos Urban			16 June 2025
Noise Impact Assessment prepared by Pulse White Noise Acoustics			15 May 2025
BCA Assessment Report prepared by Credwell			22 May 2025
Fire Safety Strategy prepared by Holmes Australia			27 May 2025
Services Statement prepared by NDY			28 May 2025
Operational Waste Management Plan prepared by Elephants Foot			27 May 2025
Amended Public Art Plan prepared by Curio			June 2025
Revised Flood Management Report prepared by SGC			6 June 2025
Landscape Retaining Wall Structural Statement prepared by ADG			27 May 2025
Amended BASIX Certificate and Stamped plans prepared by Credwell			18 June 2025
Stormwater Design Statement and Calculations prepared by NDY			27 May 2025
Stormwater Management Report prepared by NDY			23 May 2025
Amended Landscape Design Drawings prepared by Arcadia (Rev I)			June 2025
Sydney Trains Documents
Risk Assessment prepared by Thirdi			29 May 2025
Finite Element Analysis Report prepared by Morrow Geotechnics			29 May 2025
Structural Design Report prepared by ADG			29 May 2025
Footings section and loading plans prepared by ADG			8 May 2025

83. The Court orders that:

1. The Applicant is to pay the Respondent Council’s costs thrown away as a result of the most recent amendments made to the Development Application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development Application D/2024/231 as amended, for demolition of existing structures and construction of an 8-storey mixed-use building comprising 2 retail tenancies, 1 x 2-bedroom apartment and 12 x 3-bedroom apartments, car parking at the lower ground and 2 basement levels, rooftop communal open space, associated landscaping works and vehicle access from Ward Avenue at 51-57 Bayswater Road, Rushcutters Bay is approved, subject to the conditions at Annexure A.

S Dixon

Senior Commissioner of the Court

**********

258056.24 Annexure A (734 KB, pdf)

Amendments

23 June 2025 - Typographical error corrected at par [6].

15 August 2025 - Correct Annexure A uploaded

Decision last updated: 15 August 2025