Youssef Corp Pty Ltd v Bayside Council

[2021] NSWLEC 1540

Land and Environment Court

New South Wales

Medium Neutral Citation:

Youssef Corp Pty Ltd v Bayside Council [2021] NSWLEC 1540

Hearing dates:

Conciliation conference on 10 September 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The Applicant’s amended written request under cl 4.6 of the Rockdale Local Environmental Plan 2011 (RLEP), prepared by BMA Urban and dated July 2021 seeking a variation of the development standard for height of buildings under cl 4.3 of the RLEP, is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to development application No. DA-2020/161 for the demolition of existing structures and construction of a 4-storey mixed use development comprising 14 residential apartments and two levels of parking at 424-430 Rocky Point Road, Sans Souci, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement reached

Legislation Cited:

Bayside Local Environmental Plan 2021, cl 1.8A Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50(1AB), 55, 143A

Land and Environment Court Act 1979, s 34

Rockdale Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 6.1, 6.2, 6.4, 6.7, 6.11, 6.12

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Texts Cited:

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

Category:

Principal judgment

Parties:

Youssef Corp Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
K Dennis (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2021/11812

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Bayside Council's refusal of development application DA-2020/161 (DA).

Introduction

2. The DA, as amended, seeks consent for the demolition of existing structures and construction of a 4-storey mixed use development comprising 14 residential apartments and two levels of parking. The site the subject of the DA is legally described as Lot 430 in DP 811385, Lot 115 and Lot 116 in DP 15391, and is otherwise known as 424-430 Rocky Point Road, Sans Souci.

3. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 10 September 2021, and at which I presided. An agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to them. The decision agreed upon would uphold the appeal and have the Court exercise the function under s 4.16(1) of the EPA Act to grant consent to the development application in accordance with agreed conditions.

4. The parties submit that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), and provided a jurisdictional statement to that effect. I agree with this submission of the parties, and address the jurisdictional tests in regard to the application as indicated below.

Jurisdictional considerations

5. In regard to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cl 7(1), I note and accept the advice that the land has been continually used for retail and commercial purposes for an extended timeframe and as such is not considered to be at risk of contamination. The requirements are met.

6. In regard to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and relevant provisions of the Environmental Planning and Assessment Regulation 2000 (Regulation), the Applicant has provided a Design Verification Statement, referencing the amended application, that meets the requirements of cll 50(1AB) and 143A of the Regulation (prepared by a Registered Architect with reference number: 4475). I have considered the report of the Bayside Design Review Panel (meeting held 2 July 2020) and I have considered the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide and, in agreement with the parties, I believe that adequate regard has been had to them.

7. In regard to State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) - Rocky Point Road is identified as a classified road. Therefore, cll 101 and 102 of the SEPP Infrastructure apply. The Development Application provides vehicular access and egress from Jameson Lane, therefore the proposal is consistent with cl 101. I accept the advice of the parties that an acoustic report prepared by Acoustic Logic dated 15 April 2021 confirms that the proposal achieves the relevant noise attenuation criteria and recommends conditions of consent, which satisfies cl 102.

8. Regarding State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 - the parties advise an amended BASIX Certificate has been issued with respect to the Development Application.

9. By way of background I note that at the time of lodgement of the application, Rockdale Local Environmental Plan 2011 (RLEP) applied to the subject site. On 27 August 2021, RLEP was repealed and the Bayside Local Environmental Plan 2021 (BLEP) commenced. BLEP includes a savings provision at clause 1.8A which reads:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

10. I accept the advice of the parties that the effect of the savings provision is that the subject application is to be determined as if BLEP has not commenced (and accordingly DA-2020/161 should be determined with respect to RLEP). In regard to RLEP:

• The site falls within the B4 Mixed Use zone. The proposal is permissible within the zone. I have had regard to the zone objectives in accordance with the requirements of cl 2.3.

• The site is subject to a maximum building height control of 16m pursuant to cl 4.3. The Development Application, as amended, proposes a height of 16.255m. I deal with this contravention below.

• The site is identified as a Class 5 Acid Sulfate Soil Area, however is not within 500m of an adjacent Class 1, 2, 3 or 4. Therefore, an acid sulfate soil management plan is not required for the proposed works pursuant to cl 6.1.

• Clause 6.2 is concerned with earthworks. A geotechnical investigation prepared by Alliance Geotechnical dated 6 May 2020 indicates that appropriate measures are proposed to avoid, minimise or mitigate the impact of the development on adjacent properties. I have considered the matters at cl 6.2(3) and accept the advice of the parties that the proposal satisfies these matters and that appropriate conditions of consent as agreed to ensure minimal impacts on the amenity of surrounding properties, drainage patterns and soil stability.

• The parties advise the site is affected by the Obstacle Limitation Surface (OLS) which is set at 45.72m to Australian Height Datum (AHD). The proposal, as amended is well below 45.72m AHD and therefore is considered to have minimal adverse impacts on OLS. The Council is satisfied that the proposal satisfies cl 6.4. I accept this advice.

• Clause 6.7 is concerned with stormwater. An on-site detention system is proposed to manage stormwater, which the parties see as satisfying the requirements. I am satisfied in regard to cl 6.7.

• Clause 6.11 is concerned with active street frontages. As the ground floor fronting Rocky Point Road would consist entirely of retail space (apart from the residential entrance lobby and fire egress) the requirements are satisfied.

• Clause 6.12 is concerned with provisions of essential services. I accept the advice of the parties that such services would be provided in this instance.

11. Under s 4.15(1)(d) of the EPA Act, I must take into consideration lay submissions. The parties have drawn to my attention the particulars of submissions received and the requirements of s 4.15(1)(d) of the EPA Act are satisfied.

Development standard contravention

12. Clause 4.3 of the RLEP provides for a maximum building height of 16m. The parties agree the proposal, as amended, proposes a height of 16.255m and that this applies to only a small portion of a lift overrun. The Applicant relies on a written request (WR) prepared pursuant to cl 4.6 of the RLEP, by BMA Urban and dated 19 July 2021, to justify the contravention of the height control. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the RLEP for the following reasons.

13. The WR demonstrates that compliance with the development standard is unreasonable or unnecessary as the objectives of the height control at cl 4.3 of the RLEP are achieved notwithstanding the non-compliance with the standard. These objectives are set out as follows:

(a)  to establish the maximum limit within which buildings can be designed and floor space can be achieved,

(b)  to permit building heights that encourage high quality urban form,

(c)  to provide building heights that maintain satisfactory sky exposure and daylight to buildings, key areas and the public domain,

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

14. I accept that the WR has adequately demonstrated that these objectives are each achieved given that (1) the building height sits almost entirely under the control (ie the very limited extent of variation), (2) the breach does not affect the otherwise design quality of the development or otherwise visual perception of the building from elsewhere, (3) the breach is negligible with respect to sky exposure and off-site daylight access, and (4) given its minor scale the development is not definably inconsistent with that anticipated, with respect to transition in built form, to a compliant scheme.

15. Next, I consider whether the WR demonstrates there to be sufficient environmental planning grounds to justify the contravention of the height control. I think this is so given the WR’s demonstration of: (1) the very minor scale of the breach, and (2) the fact that the breach is related to the site topography.

16. Next I need to consider whether the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the zone. I rely on my findings above, in regard to the WR, as confirmation that the proposal is consistent with the objectives of the building height standard.

17. There are two zone objectives to the B4 Mixed Use zone. Given its provision of a mix of commercial and residential development space, the proposal is clearly consistent with the first objective of “(providing for) a mixture of compatible uses. The proposal is also consistent with the second zone objective, and its concern with integrating land use so as to maximise public transport use and active transport. This is because of the site’s good proximity to public transport (bus) services and its provisioning for bicycle storage on-site.

18. On the basis of the above, I am satisfied that the proposed development is consistent with the objectives of the development standard, and the objectives of the zone, and so is in the public interest.

19. In respect of the Planning Secretary’s concurrence required at cl 4.6(4)(b) of the RLEP, I note there is no such requirement upon me here but record my conclusion that the contravention of the height standard does not raise any matter of significance for State or regional environmental planning. Neither do I consider there to be a public benefit in maintaining the development standard in this instance.

Lay submissions

20. The public notification period for the proposal resulted in five objecting submissions. I have worked through these objections with the parties in consideration of the amended plans. The requirements to take into consideration any submissions made, pursuant to s 4.15(1)(d) of the EPA Act have been addressed.

Conclusion

21. On the basis of the above findings, 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 turn I am required to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders which follow do so.

22. The Court notes:

1. That Bayside Council 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-2020/161.

2. That Bayside Council has uploaded the amended application on the NSW planning portal on 3 September 2021.

3. That the applicant has subsequently filed the amended application with the Court on 7 September 2021.

23. The Court orders that:

1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The Applicant’s amended written request under cl 4.6 of the Rockdale Local Environmental Plan 2011 (RLEP), prepared by BMA Urban and dated July 2021 seeking a variation of the development standard for height of buildings under cl 4.3 of the RLEP, is upheld.

3. The appeal is upheld.

4. Development consent is granted to development application No. DA-2020/161 for the demolition of existing structures and construction of a 4-storey mixed use development comprising 14 residential apartments and two levels of parking at 424-430 Rocky Point Road, Sans Souci, subject to the conditions of consent in Annexure A.

……………………………

P Walsh

Commissioner of the Court

Annexure A (485632, pdf)

Architectural Plans (9976322, pdf)

Landscape Plans (3836315, pdf)

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Decision last updated: 17 September 2021