Land and Environment Court New South Wales Medium Neutral Citation: The Big Bocconcini Ball Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1449 Hearing dates: Conciliation conference on 25 March, 22 April, 25 May, 21 June and 14 July 2021, final agreement filed 14 July 2021 Date of orders: 6 August 2021 Decision date: 06 August 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) The Applicant is granted leave to amend development application D/2019/1488 and rely upon the plans and documents listed at Annexure 'B'. (2) The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) The appeal is upheld. (4) Consent is granted to development application D/2019/1488 for the demolition of existing structures and construction of a five storey commercial building with ground floor retail and parking at 552-554 Botany Road, Alexandria, subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – commercial development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Sydney Local Environmental Plan 2012, cll 4.3, 4.4. 5.1, 5.1A, 5.10, 6.21, 7.1, 7.13, 7.14, 7.15, 7.16 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Sydney Development Control Plan 2012 Category: Principal judgment Parties: The Big Bocconcini Ball Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: B Salon (Solicitor) (Applicant) P Canning (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2020/270553 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application D/2019/1488 (DA) by The Council of the City of Sydney (the Respondent). The DA sought consent for demolition of existing structures and construction of a four storey commercial building with retail on the ground floor and basement parking at land identified as Lot 1 in Deposited Plan 85396 and known as 552-554 Botany Road, Alexandria (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 March, 22 April, 25 May, 21 June and 14 July 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, after a site view limited in its number of participants, the matter was conducted by Microsoft Teams. 4. Prior to the conciliation conference, the Applicant prepared a set of amended plans, on a without prejudice basis, to amend the proposal in an attempt to resolve the contentions raised by the Respondent. These amended plans formed the subject of the conciliation conference. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to the final amended proposal, subject to conditions. 6. Whilst the final amended proposal remains largely consistent with the original DA, a series of amendments cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to flooding, site planning and general arrangement, a failure to exhibit design excellence, and the failure to provide a public domain setback free of structures amongst other contentions. 7. In summary, the agreed amendments have the effect of achieving an appropriate interface between the building and the public domain, resolving earlier contentions regarding flooding, and has been amended to satisfy the Respondent that design excellence as required by cl 6.21 of the Sydney Local Environmental Plan 2012 (SLEP) is achieved. Agreed conditions of consent further ensure a satisfactory resolution of the facade design along with detailed refinements to the plans. 8. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard, I am satisfied the DA was made with the consent (in writing) of the registered proprietors of the site, being the Applicant in these proceedings. 11. The parties agree, and I am satisfied, the SLEP is a relevant environmental planning instrument. The site is zoned B7 Business Park, and the final amended proposal, characterized as a commercial office building with ground floor shop, is permissible with consent. 12. I am satisfied the final amended proposal meets the B7 zone objectives set out at cl 2.1 of the SLEP because it provides office uses and encourages employment opportunities in the local area. 13. The amended proposal is consistent with all relevant development standards set out within the SLEP, specifically height of building (cl 4.3) and floor space ratio (cl 4.4). 14. The subject site is not identified as land intended to be acquired for public purposes pursuant to cl 5.1 and 5.1A of the SLEP. 15. Clause 5.10 of the SLEP - Heritage conservation - sets out matters to be considered prior to any grant of consent. The site is not a heritage item, nor does it adjoin any heritage items. The site is not located within a heritage conservation area. 16. Clause 6.21 of the SLEP - Design excellence - sets out matters the consent authority must have regard to in forming the view that any development exhibits design excellence, which is required prior to any grant of consent. The final amended proposal achieves an appropriate interface between the building and the public domain. The layout and design of the building is consistent with the building layout and accessible design requirements of cl 6.21(4)(b) and 6.21(4)(d)(xii) of the SLEP and sections 2.10.5(h), 3.2.2, 3.2.3, 3.12, 3.13.1, 5.8.1, 5.8.2.4 (2) and (3), and 5.8.2.6 of the Sydney Development Control Plan 2012. For these reasons, the final amended proposal is considered to satisfy the requirements of cl 6.21(4)(a) of the SLEP. 17. The parties agree and I am satisfied that the Traffic Impact and Parking Assessment prepared by Samana Blue, dated 24 May 2021, referred to at Annexure 'B' confirms that the final amended proposal complies with the relevant parking requirements under Part 7, Division 1 of the SLEP. 18. Clause 7.13 of the SLEP - Contribution for purpose of affordable housing - sets out the basis on which the consent authority may impose a condition of consent for an affordable housing levy contribution. I am satisfied an agreed condition of consent requires the applicable affordable housing levy contribution. 19. Clause 7.14 of the SLEP - Acid Sulfate Soils - sets out a series of considerations regarding development with a potential to disturb acid sulfate soils. The final amended proposal is situated on land classified as Class 5. The site is also within 500m of Class 3 acid sulfate land, however the final amended proposal does not cause the water table to be lowered below 1 metre Australian Datum. A stage 1 preliminary and stage 2 detailed site investigation prepared by SLR, dated June 2019 and forming part of the Class 1 Application, confirms that no further assessment of potential or actual acid sulfate soils on the site is warranted. 20. Clause 7.15 of the SLEP - Flood planning - sets out matters to be considered prior to any grant of consent. The site is identified as a flood affected site. I am satisfied the Flood Risk Management Report prepared by Endepth Engineers, dated 7 December 2020, referred to at Annexure 'B' demonstrates the matters for consideration, set out in cl 7.15 have been appropriately resolved. 21. Clause 7.16 of the SLEP - Airspace operations - sets out matters to be considered prior to any grant of consent. The parties agree, and I am satisfied, the final amended proposal will not penetrate the Obstacle Limitation Surface shown on the Obstacle Limitation Surface Map for the Sydney Airport. 22. I am satisfied State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. A stage 1 preliminary site investigation and stage 2 detailed site investigation have been prepared by SLR, dated June 2019, which confirm the site is suitable for future development subject to additional testing. The Applicant has prepared a Remediation Action Plan and Interim Site Audit Advice which further confirms the site can be made suitable for the proposed development. As such, I am satisfied cl 7 of SEPP 55 has been appropriately addressed. 23. In accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent, and in considering submissions from objectors, the final amended proposal is in the public interest. 24. Finally, I am satisfied that granting consent to the DA does not result in any contravention of the EPA Act or any relevant environmental planning instrument. As such the Court, exercising its function under s 4.16(1) of the EPA Act grants consent to the DA subject to conditions. 25. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend development application D/2019/1488 and rely upon the plans and documents listed at Annexure 'B'. 2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is upheld. 4. Consent is granted to development application D/2019/1488 for the demolition of existing structures and construction of a five storey commercial building with ground floor retail and parking at 552-554 Botany Road, Alexandria, subject to the conditions in Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (438055, pdf) Annexure B (110181, pdf) Architecture and Landscape Plans (16870479, 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: 06 August 2021