Land and Environment Court New South Wales Medium Neutral Citation: T & R Property Development (Gordon) Pty Ltd v Bayside Council [2021] NSWLEC 1299 Hearing dates: Conciliation conference 17-18 May 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'. (2) The clause 4.6 variation request in relation to active street frontages to cl 6.15 of the Botany Bay Local Environmental Plan 2013 is upheld. (3) The Appeal is upheld. (4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent in the agreed sum of $20,000.00 within 7 days of these orders being made. (5) Development Application DA2020/201 for demolition of existing structures and construction of 4 storey boarding house development with basement parking on land legally described as Lot 1 in DP557050 and Lot 2 in DP212198 known as 24 & 26 High Street, Mascot NSW is approved subject to the conditions set out in Annexure "A" to this agreement. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Botany Bay Local Environmental Plan 2013, cll 2.3, 4.6, 6.1, 6.2, 6.3, 6.9, 6.15 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30A State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: T & R Property Development (Gordon) Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/247781 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. 2020/201. 2. The development site is legally described as Lot 1 in DP557050 and Lot 2 in DP212198 and known as 24 & 26 High Street, Mascot NSW (site). Consent is sought for demolition of existing structures and construction of 4 storey boarding house development with basement parking 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 17 and 18 May 2021, and at which I presided. During the course of the conciliation conference, the parties came to 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 jurisdictional notes provided to the Court on 17 and 18 May 2021. My consideration of jurisdictional factors is provided below. Integrated Development 1. The proposal is integrated development. The application has been referred to Water NSW, general terms of approval are received and these are included in the conditions of consent. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. In regard to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) I note: 1. Clause 30 – Standards for boarding houses – I accept the advice of the parties and am satisfied that the proposal meets, relevantly, the standards listed at subcl (1). 2. Clause 30A – Character of Local Area – I had the opportunity to observe the site in its contextual setting and have taken into consideration whether the design of the development is compatible with the character of the local area. Botany Bay Local Environmental Plan 2013 1. In regard to Botany Bay Local Environmental Plan 2013 (BBLEP), I note: 1. The site is located within the B2 Local Centre Zone and the proposal is permissible under that zone. I have had regard to the zone objectives mindful of cl 2.3(2). 2. The site is identified on BBLEP's active street frontage map under cl 6.15. The proposal does not include an 'active street frontage' as defined at subcl (5). The application is supported by a written request under cl 4.6 seeking consent notwithstanding this contravention. I consider this below. 3. The proposal does not breach any other development standards contained in relevant environmental planning instruments. 4. The following additional considerations are relevant to BBLEP: 1. Clause 6.1 - Acid Sulfate Soils. The site contains Class 4 Acid Sulfate Soils. An Acid Sulfate Soil Screening Report was submitted with the Class 1 Application and considered by Council. This was seen to satisfy the requirements of subcl (4)(a). 2. Clause 6.2 - Earthworks. Earthworks are proposed as part of the development application. Council has considered the earthworks acceptable and included appropriate conditions. I have given due consideration to the matters at subcl (3). 3. Clause 6.3 - Stormwater Management. The development application, as amended, is supported by Stormwater Management Plans. On the advice of the parties I am satisfied in regard to the requirements of subcl (3). 4. Clause 6.9 - Development in areas subject to aircraft noise. The site is affected by the 25-30 ANEF contour. The parties advise that the requirements of subcll (3)(b) and (3)(c) have been met with the preparation of an acoustic report in consideration of these subclauses and the evaluation of the report by Council specialists. The parties advise that the proposal 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. Accepting this advice, I am satisfied in regard to this clause. 1. In regard to cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), I accept the advice on the history of residential use of the site and the particulars of the proposal, and see the requirements of cl 7 have been satisfied, also noting a Stage 2 Environmental Site Assessment formed part of the application. Submissions 1. There is a need for me to give consideration to submissions under s 4.15(1)(d) of the EPA Act. Oral submissions were given on site by two objectors. The key concerns were in regard to structural risks to the adjoining property to the east and security and attraction of undesirable tenants. Written submissions related to neighbour amenity, character compatibility (bulk and scale and overdevelopment of site, height, setbacks), increased traffic and reduced on street parking, effects on development potential for other sites, flight path implications. 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. Contravention of active street frontages standard under BBLEP 1. In accordance with cl 4.6(3), the applicant has provided a written request seeking to justify the contravention of the active street frontages standard at cl 6.15 of BBLEP. The written request was prepared by Planning Ingenuity and dated 1 June 2021 (WR). 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 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 6.15 of BBLEP. 4. The objective of cl 6.15 of BBLEP is reproduced below: The objective of this clause is to promote uses that attract pedestrian traffic along certain ground floor street frontages. 1. The WR demonstrates that the particulars of the site's location: (1) at the extremity of the active street frontage precinct, and (2) with a relatively large residential flat building sitting between the site and the more activated portion of the B2 Local Centre zone; mean the proposal's best prospects for promoting uses that attract pedestrian through traffic along the identified ground floor street frontages is with the use as proposed. That is, that the siting of business premises or retail premises at street level would be unlikely to be viable at the site, whereas the introduction of additional people to the locality assists in the viability of other active street frontage development. 2. 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. 3. The WR outlines certain environmental planning grounds which in my view are sufficient to justify the contravention. The planning grounds of particular pertinence to me, mentioned in the WR, are that the proposal provides a better site and context specific planning outcome, by including appropriately designed residential accommodation, than would unviable business or retail uses. 4. Together the above findings mean the applicant's WR has adequately addressed the matters required to be demonstrated by cl 4.6(3) of BBLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied. 5. I now turn to the test at cl 4.6(4)(a)(ii) of BBLEP. I rely on the written request's demonstration that the proposed development is consistent with the objective of the applicable standard. 6. 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. My finding of consistency with the first zone objective aligns with my finding in regard to the actual achievement of the objective behind the street activation standard. That is that the proposal would add to the viability of the retail, business, entertainment uses in the vicinity. The proposal is consistent with the second zone objective because it results in an increase in accommodation density in an accessible location and thus the demand for facilities and services and associated employment demand. The proposal is consistent with the third zone objective because of the increased housing provision in this area with relatively good walkability and public transport accessibility, and through the bike parking spaces provided. 2. The proposed development will be in the public interest because it is consistent with the objectives of the active street frontages 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 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 BBLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the active street frontages 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. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'. 2. The clause 4.6 variation request in relation to active street frontages to cl 6.15 of the Botany Bay Local Environmental Plan 2013 is upheld. 3. The Appeal is upheld. 4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent in the agreed sum of $20,000.00 within 7 days of these orders being made. 5. Development Application DA2020/201 for demolition of existing structures and construction of 4 storey boarding house development with basement parking on land legally described as Lot 1 in DP557050 and Lot 2 in DP212198 known as 24 & 26 High Street, Mascot NSW is approved subject to the conditions set out in Annexure "A" to this agreement. .……………………… P Walsh Commissioner of the Court Annexure A (359250, pdf) Architectural Plans (10171739, pdf) Landscape Plans (5034557, pdf) Stormwater Plans (1339609, 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: 31 May 2021