Hatzitoulousis v Bayside Council [2021] NSWLEC 1282

Land and Environment Court New South Wales

Medium Neutral Citation: Hatzitoulousis v Bayside Council [2021] NSWLEC 1282 Hearing dates: Conciliation conference on 6 May 2021 Date of orders: 25 May 2021 Decision date: 25 May 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See Orders at [20] Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation – agreement between the parties – orders Legislation Cited: Botany Bay Local Environmental Plan 2013 cll 4.3, 4.4B, 4.4C, 6.9 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, ss 30, 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Australian Standard 2021:2000 Acoustics—Aircraft noise intrusion—Building siting and construction Category: Principal judgment Parties: Dimitrios Hatzitoulousis (Applicant) Bayside Council (Respondent) Representation: Counsel: M Staunton (Applicant) P Hudson (Solicitor) (Respondent)

Solicitors: Messenger & Messenger Solicitors (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/62675 Publication restriction: Nil

Judgment 1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Bayside Council (Council) of development application DA-2019-71 (DA) for demolition of existing dwelling and construction of a four storey boarding house with basement parking and associated earthworks and landscaping at Lot 63 Deposited Plan 218214 known as 26 Mascot Drive, Eastlakes (site). 2. The parties undertook conciliation pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act) on 22 October 2020 but the matter was not resolved, and the conciliation was terminated. 3. On 29 October 2020 the Senior Commissioner fixed the matter for hearing on 6 and 7 May 2021. The Chief Judge delegated the hearing to me pursuant to s 30 of the Court Act. 4. The hearing commenced on site on 6 May 2021 and I heard evidence from concerned local residents residing at the properties to the rear of the site. I inspected their properties and the site. 5. Shortly after concluding the site inspection, I was informed by the parties that they had reached agreement in principle as to the determination of the appeal and sought to adjourn the hearing and move the Court for an order for further conciliation pursuant to s 34 of the Court Act. I adjourned the hearing until 3pm 6 May 2021. 6. The Registrar ordered that there be further conciliation and the Chief Judge delegated that power to me. Accordingly, on 6 May 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Court Act. At the conciliation conference, the parties confirmed that they had reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. 7. The proposed decision was to grant leave to amend the development application, make a consequential costs order and to grant development consent subject to conditions. 8. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 9. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. In order to exercise that function, I must be satisfied that any preconditions to the exercise of that power have been met. 10. The site is zoned R4 pursuant to Botany Bay Local Environmental Plan 2013 (BBLEP 2013). Boarding houses are a permissible use in the zone. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) also applies to the development application. 11. There is no non-compliance with any development standard in BBLEP 2013 or SEPP ARH, nor any failure to meet the relevant "deemed to satisfy" provisions in SEPP ARH. 12. Clause 4.4C of BBLEP 2013 applies to the site because it is zoned R4. The clause requires the consent authority to be satisfied that the development will: (a) achieve acceptable amenity outcomes (including in terms of overlooking, overshadowing and comparative streetscape elevation) in relation to adjoining land, and (b) provide appropriate building setback, and (c) provide a transition in building scale to development on adjoining land, and (d) be compatible with the character of the area in terms of building bulk and scale, and (e) not impede the fulfilment of an objective of clause 4.3 or 4.4B. 1. Having regard to the joint report dated 14 April 2021 by the town planners, B Moroz retained by the Applicant and A Iskander of the Council, I am satisfied that the development will achieve the outcomes in cl 4.4C of BBLEP 2013 for the reasons they have set out in detail. The amendments to the plans of the development, by reducing the size of the development and increasing its setbacks with adequate landscaping, have eliminated unreasonable overlooking, permitted acceptable solar access to neighbouring residences, allowed a transition to the land zoned R2 to the immediate south and ensured the proposed boarding house is compatible with the character of the area in terms of its bulk and scale. 2. Further, there is nothing in the proposed development which would impede an objective of cll 4.3 or 4.4B of BBLEP 2013. 3. Clause 6.9(3)(c) of BBLEP 2013 applies to the site and provides that prior to the grant of development consent the consent authority must be satisfied that the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2000. An acoustic report by Ruben Ghannoum of Acoustic Logic dated 19 April 2021 addresses that issue and I am satisfied that the development will meet the nominated indoor design sound levels with the imposition of the conditions set out in the report and which are included in the conditions the subject of the agreement between the parties. 4. Clause 30A of SEPP ARH requires me to consider whether the design is compatible with the character of the local area. I agree with the conclusion of the town planners that there is compatibility following the amendments to the plans. The development meets all relevant development standards and is within the reasonable expectation of the form of building in the R4 zone. 5. State Environmental Planning Policy No 55—Remediation of Land applies to the land. The site, and the adjacent land, has been used for residential purposes for many years and there is no suggestion that there has been any use which could have caused the site to be contaminated. I am satisfied that the site is not contaminated and that it is suitable for use as a boarding house. 6. An updated BASIX Certificate number 1080619M_03 has been provided as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 7. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was 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 EP&A Act. 8. Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders: 1. Leave is granted to the Applicant to rely on the following amended material: 1. Revised drainage plans prepared by Northrop Consulting, Drawing Number HDA000, HDA099, HDA100, HDA102, HDA103, HDA104, HDA600, HDA601 and HDA602 dated 26 February 2021; Drafting No HDA101 dated 13 April 2021; 2. Revised landscape plan prepared by Isthmus Rev D dated 19 April 2021; 3. Revised Acoustic Report prepared by Acoustic Logic dated 19 April 2021; 4. Revised BASIX Certificate dated 14 May 2021 (Certificate Number: 1080619M); 5. Amended Operational Plan of Management prepared by BMA Urban dated 22 April 2021; and 6. Revised Architectural Plans prepared by Loucas Architects, Issue H Plans, Drawing Number A-0600, A-0800, A-0900, A-0950, A-1050, A-1150, A-1250, A-1350, A-1400, A-2050, A-2150, A-2200, A-2300, A-2400, A-3000, A-3100, A-4000, A-5000, A-5100, A-5500, A-5600, A-5700 and A-5800 dated 5 May 2021. 1. The applicant is to pay the Council's costs thrown away as a result of the amendment to the application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or as assessed. 2. The appeal is upheld. 3. Development consent is granted to development application DA-2019-71 (DA) for demolition of existing dwelling and construction of a four storey boarding house with basement parking and associated earthworks and landscaping at Lot 63 Deposited Plan 218214 known as 26 Mascot Drive, Eastlakes.