Land and Environment Court New South Wales Medium Neutral Citation: IBT Investments Pty Ltd v Bayside Council [2021] NSWLEC 1246 Hearing dates: Conciliation conference on 29-30 April 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) Leave is granted to the Applicant to rely on amended plans set out in Annexure A hereto and the written request under clause 4.6 of the Botany Bay Local Environmental Plan 2013 (LEP) prepared by Chapman Planning Pty Limited, entitled "Amended Clause 4.6 Variation to Development Standard" and dated 29 April 2021 (cl. 4.6 Request). (2) The Applicant's cl. 4.6 Request seeking a variation of the development control for the height of buildings set out in clause 4.3 of the LEP is upheld. (3) That the Applicant pay, pursuant to s. 8.15(3) of the Environmental Planning and Assessment Act 1979, the Respondent's costs thrown away as a result of the Amended Plans set out in Annexure A and the cl. 4.6 Request as agreed or assessed. (4) The appeal is upheld. (5) Consent is granted to Development Application for demolition of all structures on land and the erection of a boarding house comprising 53 boarding rooms (including one managers room), 1 ground floor retail tenancy and two basement parking levels accommodating 32 car spaces accessible via a scissor car lift at 197-199A King Street, Mascot, subject to the conditions set out in Annexure B. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Botany Bay Local Environmental Plan 2013, cll 4.3, 4.6, 6.1, 6.2, 6.3, 6.9 Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: IBT Investments Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: S Berveling (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/189752 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Bayside Council's deemed refusal of Development Application No. 2020/97. 2. The development site is land identified as Lot 1 DP 927237 and Lot B DP 399620, collectively known as 197-199A King Street Mascot (Site). Consent is sought for demolition of all structures on the Site and the erection of a boarding house comprising 53 boarding rooms (including one manager's room), 1 ground floor retail tenancy, 2 basement parking levels accommodating 32 car spaces accessible via a scissor car lift, landscaping and associated works (proposal). 3. 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 and 30 April 2021, and at which I presided. During the course of the conciliation conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. 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. Jurisdiction General 1. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties outlined jurisdictional matters of relevance in these proceedings, including through provision of a jurisdictional statement dated 29 April 2021. In regard to jurisdiction, I can note the following: 1. The site is located within the B2 Local Centre Zone under Botany Bay Local Environmental Plan 2013 (BBLEP) and the proposal is permissible under that zone. 2. Under cl 4.3(2) of BBLEP, the height of building development standard is 14m. The proposal exceeds this height. The applicant relies on a written request pursuant to cl 4.6(3) of the BBLEP dated 27 April 2021 to justify the contravention of the height development standard. I consider this below. 3. I accept the advice of the parties that the proposal does not breach any other development standards contained in relevant environmental planning instruments. 4. In relation to cl 6.1 of BBLEP concerning heritage conservation, the Site is within the vicinity of locally listed heritage items. I have considered the effect of the proposed development on the heritage significance of these items during the site inspection and through review of expert advice. 5. In relation to cl 6.1 of BBLEP concerning acid sulfate soils, the Site falls within "Class 4" land. An acid sulphate soils management plan prepared by EIAustralia dated 20 April 2020 was lodged with the DA, satisfying the requirements of this clause. 6. Clause 6.2 of BBLEP is concerned with earthworks. I have considered the listing of matters at subcl (3) and accept the advice of the parties that matters relating to earthworks are satisfactorily addressed with the proposed consent conditions. 7. Clause 6.3 of BBLEP is concerned with stormwater management. I have considered the listing of matters at subcl (3) and accept the advice of the parties that with the proposed consent conditions the development meets the requirements of subcll (3)(a), (b) and (c). 8. Clause 6.9 of BBLEP is concerned with aircraft noise. I accept the advice of the parties and am satisfied that the proposal will meet the requirements of subcl (3)(c). 9. The site is identified as "Active street frontage" land under cl 6.15 of BBLEP. Mindful of the architectural plans and the advice of the parties, I am satisfied that the proposed building will have an active street frontage. 10. In regard to cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), I have considered whether the land is contaminated. I accept the advice on the history of residential use of the Site and its locality, and see the requirements of cl 7 have been satisfied. 11. The application is for integrated development as it excavates below the water table. The conditions of NSW Water General Terms of Approval are included in the conditions of consent. 12. There is a need for me to give consideration to objections under s 4.15(1)(d) of the EPA Act. Submissions were raised in regard to: character compatibility, amenity impacts for neighbours, traffic and parking, effects on development potential for other sites, flight path implications, potential increase in antisocial and criminal behaviour. I have, relevantly, raised these issues with the parties who indicated familiarity with all the submissions and they had been taken into account and appropriate responses have been made. The requirement to give consideration to submissions has been met. 13. After its storage in a collection area to the rear (within Lot B DP 399620), waste would be removed via a right of carriageway already in place over Lot 1 DP 724839. I accept the advice of the parties that there are already unrestricted rights of access over this Lot and, as no works are proposed or required over Lot 1 DP 724839, no consent is required for continuance of this lawful access. Contravention of height development standard under BBLEP 1. The proposed development exceeds the 14m height of buildings standard under cl 4.3 of BBLEP. The applicant is seeking an exception to compliance with the development standard under cl 4.6 of BBLEP. In accordance with cl 4.6(3), the applicant has provided a written request seeking to justify the contravention of the building height standard. The written request, prepared by Chapman Planning Pty Ltd and dated 29 April 2021 (WR), indicates a height contravention of up to 1.9m for the lift overruns and 0.99m for the roof form. The parties agree that the WR is well founded and that the facultative powers of cl 4.6 of BBLEP should be deployed in this case. 2. I have reviewed the WR and other matters related to whether the powers of cl 4.6 of BBLEP should be available. I am satisfied in regard to the matters listed below, as explained. 3. The WR demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of the BBLEP). It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The WR adopts the first "Wehbe way", successfully showing how, otherwise, the development, relevantly, achieves the objectives of cl 4.3. 4. I reproduce the list of objectives of the clause below: (a) to ensure that the built form of Botany Bay develops in a coordinated and cohesive manner, (b) to ensure that taller buildings are appropriately located, (c) to ensure that building height is consistent with the desired future character of an area, (d) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development, (e) to ensure that buildings do not adversely affect the streetscape, skyline or landscape when viewed from adjoining roads and other public places such as parks, and community facilities… 1. For me, objectives (a), (b) and (c) are the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) to be "explanatory of the purpose of the … development standard" (Baron at [32]). Objectives (a), (b) and (c) explain the intention behind the establishment of the building height controls. That is to say, the height controls are concerned with the achievement of objectives (a), (b) and (c). 2. Nonetheless, I do accept the WR's position that the development, as now proposed, with its relatively minor height contravention aligns with, and is sympathetic to, these three objectives, providing for a building in a near to compliant height (noting the lift overruns as an exception but also their location offset from boundaries) in a location designated for buildings of this height. I also accept the WR's commentary that objectives (d) and (e) will be achieved because of the minor variation involved and building design features. 3. The WR adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case through satisfying the requirements of the first Wehbe way. 4. The WR outlines certain environmental planning grounds seen as justifying the contravention. The planning grounds of particular pertinence to me, mentioned in the WR, are in respect to (1) the relatively minor scale and confined area of the contravention and (2) how, notwithstanding the contravention, the development would bring reasonable outcomes for neighbours in regard to what might be generally understood to be building height-related concerns (solar access, privacy and view loss). I am satisfied that the WR adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. 5. The WR provides that there are sufficient environmental planning grounds to justify the variation to the height of buildings development standard. While further grounds are provided sufficient for me here are the following (WR, p 5): "The variation … is partly a result of an environmental constraint on the land, with the habitable floor level of the rear building (RL8.1) raised above natural ground level (RL7.6) in response to the flood affectation of the site, and the building has been designed with commercial floor to ceiling height of 3.2m and boarding rooms at 2.6m to allow for flexibility for use of the commercial premises and improved residential amenity for the boarding rooms." 1. Together the above findings mean the applicant's WR has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the BBLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied. 2. I now turn to the test at cl 4.6(4)(a)(ii) of the BBLEP. I rely on the written request's demonstration that the proposed development is consistent with the objectives of the applicable height standard. 3. The zone objectives are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. 1. I find the proposed development consistent with these objectives because of its inclusion of commercial and employment oriented uses integrated with accommodation in an accessible location, near to public transport. 2. The proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 Local Centre zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the BBLEP are met. 3. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of BBLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention. I find nothing of significance arises in regard to those matters. 4. The states of satisfaction required by cl 4.6 of the BBLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height control. Conclusion 1. Based on the material outlined 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. 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. I note that I have had no direct regard to the merits of the application in coming to this position. 2. The Court orders: 1. Leave is granted to the Applicant to rely on amended plans set out in Annexure A hereto and the written request under clause 4.6 of the Botany Bay Local Environmental Plan 2013 (LEP) prepared by Chapman Planning Pty Limited, entitled "Amended Clause 4.6 Variation to Development Standard" and dated 29 April 2021 (cl. 4.6 Request). 2. The Applicant's cl. 4.6 Request seeking a variation of the development control for the height of buildings set out in clause 4.3 of the LEP is upheld. 3. That the Applicant pay, pursuant to s. 8.15(3) of the Environmental Planning and Assessment Act 1979, the Respondent's costs thrown away as a result of the Amended Plans set out in Annexure A and the cl. 4.6 Request as agreed or assessed. 4. The appeal is upheld. 5. Consent is granted to Development Application for demolition of all structures on land and the erection of a boarding house comprising 53 boarding rooms (including one managers room), 1 ground floor retail tenancy and two basement parking levels accommodating 32 car spaces accessible via a scissor car lift at 197-199A King Street, Mascot, subject to the conditions set out in Annexure B. ………………………. P Walsh Commissioner of the Court Annexure A (123247, pdf) Annexure B (452573, pdf) Plans (2787407, pdf) Plans 2 (2322695, 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 May 2021