Land and Environment Court New South Wales Medium Neutral Citation: Owen v Bayside Council [2020] NSWLEC 1293 Hearing dates: Conciliation conference 29 June 2020 Date of orders: 10 July 2020 Decision date: 10 July 2020 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 2 of the conditions at Annexure A. (2) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $30,600.00. (3) The appeal is upheld. (4) Development application DA 2019/131 for the demolition of existing structures on site and the construction of a twelve (12) storey residential flat building with 4 retail tenancies, 169 residential units, five (5) basement parking levels and communal open space at podium and mezzanine level at 15-23 Chapel Street, Rockdale is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (State and Regional Development) 2011 Category: Principal judgment Parties: Tony Owen (Applicant) Bayside Council (Respondent) Representation: Counsel: R McCulloch (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/16934 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal of Development Application DA 2019/131 ('DA') by Bayside Council ('Council'). 2. The DA, with modifications incorporated into amending plans, seeks consent for the demolition of existing structures on site and the construction of a twelve-storey residential flat building with 4 retail tenancies, 169 residential units, five basement parking levels and communal open space at podium and mezzanine levels at a site comprising the following parcels of land (Council's Statement of Facts and Contentions filed 17 February 2020, p1): * 15 Chapel Street, Rockdale (Lot 4 DP 9591) * 17 - 19 Chapel Street, Rockdale (SP 57953) * 21 Chapel Street, Rockdale (Lot 7 DP 9591) * 23 Chapel Street, Rockdale (Lot 1 DP 227561) 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 29 June 2020, and at which I presided. The parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 2. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties subsequently outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied by email dated 30 June 2020 (titled "Note to Section 34 Agreement: Jurisdictional matters"). Regarding jurisdiction, and noting this advice, I am satisfied of the following: Owner's Consent 1. The development application was made with the consent in writing of the existing owners of the land to which the development application relates. Characterisation and Permissibility 1. The land to which the development application relates is situated within Zone B4 Mixed Use under Rockdale Local Environmental Plan 2011 ('LEP'). The proposed development is for the purposes of a mixed use development comprising both retail premises and a residential flat building as defined in the Dictionary to the LEP. The development is permissible with consent under the Land Use Table to the LEP. Development Standards and Matters for Consideration 1. As required by cl 2.3(2), I have regard to the objectives of the B4 zone which are noted as follows: * To provide a mixture of compatible land uses. * To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. Height 1. Pursuant to the Height of Buildings Map referred to in cl 4.3 of the LEP, the maximum permissible height on the site is 28m. However, the site is within area A as identified and therefore pursuant to cl 4.3(2A)(a) may exceed the maximum height by 12m (being 40m total) where the site has an area of at least 1500sqm. The site has an area of 2,142sqm. Design Excellence 1. Clause 6.14 of the LEP is applicable to any development to which cl 4.3(2A)(a) applies. 2. Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence and the consent authority must have regard to the matters listed in cl 6.14(4). 3. The parties have provided me with a detailed commentary on the matters listed at cl 6.14(4) of the LEP. The commentary was dated 30 June 2020 and prepared by the urban design experts engaged by the parties (R Dickson for applicant, G Morrish for Council). The commentary works through each of the matters listed at cl 6.14(4) and explains why the experts consider that the development exhibits design excellence having regard to the listed matters. Having reviewed the opinion expressed by these two experts who are known to the Court, and noting my own review of the plans, I consider that the development exhibits design excellence. 4. Further, pursuant to cl 6.14(5) of the LEP, development consent must not be granted unless, in respect of a building that is, or will be, higher than 12 metres or 3-storeys (or both) but not higher than 40 metres or 12-storeys (or both)— (i) a design review panel reviews the development, and (ii) the consent authority takes into account the findings of the design review panel… 1. I accept that the maximum height of the proposed building is less than 40m and that the building is 12-storeys plus mezzanine. Storey is defined in the dictionary to the LEP to exclude a mezzanine. Mezzanine is defined as "an intermediate floor within a room". I am satisfied with the agreed view expressed by the parties that the areas shown on Drawing A105 fall within the definition of mezzanine. 2. I have been advised that the matter was referred to Design Review Panel ('Panel') on 16 May 2019, 4 July 2019, 1 August 2019, 3 October 2019 and 10 December 2019, and that the DA has been amended on a number of occasions to respond to Panel comments. I have been provided with a copy of the minutes from the most recent Panel meeting which sought further significant changes to the proposal. In their detailed commentary in regard to design excellence (see [13]), the urban design experts engaged by the parties have commented on how the findings of the Panel were taken into account in preparing the agreed plans. I am satisfied that I have duly taken into account the findings of the Panel. Heritage 1. The site is not heritage listed or within a heritage conservation area. The site is 180m from "Uniting Church and Buildings" – I206 identified in Schedule 5 of the LEP. I am advised that consideration has been given as to the effect of the proposed development on the heritage significance of the item pursuant to cl 5.10(5) of the LEP and it is considered that any impact will be acceptable. In this regard, I note the advice of the urban design experts in regard to heritage in their detailed commentary in regard to design excellence (see [13]), which finds that there would be no adverse impact. Earthworks 1. I accept the advice of the parties in relation to earthworks and cl 6.2(3) of the LEP, and that the relevant considerations have been addressed by the various conditions of consent applicable to earthworks and geotechnical considerations. Aircraft Noise 1. Clause 6.3 of the LEP applies to the subject site as it is within an ANEF contour of 20 or greater. Accordingly, an Acoustic Report dated 12 September 2019 has been prepared and conditions 54(f), 115 and 135 have been imposed to address cl 6.3(3). In turn, and on the advice of the parties, I am satisfied that the requirements of that clause have been met. Airspace Operation 1. Clause 6.4 of the LEP applies. The DA will penetrate the Limitation or Operations Service and the parties advise that Sydney Airport Corporation Limited has no objection. Condition 147 makes an appropriate reference. In turn, and on the advice of the parties, I am satisfied that the requirements of that clause have been met. Stormwater 1. On the advice of the parties I am satisfied that the DA will achieve the requirements of cl 6.7(3) due to the imposition of conditions generally and 80, 106 and 140 in particular. Essential Services 1. On the advice of the parties, pursuant to cl 6.12, I am satisfied that the site is capable of providing essential services as shown on the architectural drawings. State Environmental Planning Policy 55—Remediation of Land 1. I am satisfied that consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. This is based on the advice of the parties that the proposed works do not include any change to the use of land that would result in concern, with respect to contamination, as the site has a long history of residential use. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 1. A Design Verification Statement dated 23 August 2019 has been provided to satisfy cl 28(2) of this State Environmental Planning Policy. State Environmental Planning Policy (Infrastructure) 2007 1. The Acoustic Report prepared by Koikas Acoustics dated 31 March 2020 has been provided to satisfy cl 102 of this State Environmental Planning Policy. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. Pursuant to Part 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 I have taken into account the Guidelines for the Retention of Existing Affordable Rental Housing and the considerations at cl 50(2). I accept the agreed imposition of condition 83 for the payment of monetary contributions pursuant to cl 51 of this SEPP and s 7.32 of the EPA Act. Public Participation 1. I accept the advice of the parties that notification requirements have been satisfied and I have taken submissions into consideration. Delegation to enter into agreement 1. As the DA has a Capital Investment Value of greater than $30 million, as specified within Schedule 7 of State Environmental Planning Policy (State and Regional Development) 2011, the determining authority was the Sydney Eastern Regional Planning Panel. I accept the advice of the parties that the officers of the respondent have been granted the relevant delegation by the Sydney Eastern Regional Planning Panel to resolve the proceedings by way of agreement. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 2 of the conditions at Annexure A. 2. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $30,600.00. 3. The appeal is upheld. 4. Development application DA 2019/131 for the demolition of existing structures on site and the construction of a twelve (12) storey residential flat building with 4 retail tenancies, 169 residential units, five (5) basement parking levels and communal open space at podium and mezzanine level at 15-23 Chapel Street, Rockdale is approved subject to the conditions at Annexure A. .………………………… P Walsh Commissioner of the Court Annexure A (585372, pdf) Plans (47820025, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2020