Land and Environment Court New South Wales Medium Neutral Citation: Karimbla Construction Services (NSW) Pty Ltd v Bayside Council [2021] NSWLEC 1593 Hearing dates: Conciliation conference on 28 September 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Class 1 Before: Horton C Decision: Proceedings 2021/189113 See orders at [33] Proceedings 2021/69719 See orders at [34] Catchwords: MODIFICATION APPLICATION – Concept plan approval – modification of concept plan approval – Stage 1 development application – conciliation conference – agreement between the parties – orders Legislation Cited: Architects Act 2003 Bayside Local Environmental Plan 2021, cll 1.8A, 5.21 Botany Bay Local Environmental Plan 2013, cll 4.4C, 6.2, 6.3, 6.8, 6.16, 6.19, 19 Environmental Planning and Assessment Act 1979, ss 4.55, 4.16, 4.20, 8.9, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 50 Land and Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102, 104 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 3, 28 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Karimbla Construction Services (NSW) Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) M Staunton (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2021/189113; 2021/69719 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is initially brought in respect of two related matters. The first matter is an appeal brought under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Bayside Council (the Respondent) of modification application DA2019/386/B in respect of concept plan approval for which consent has already been granted subject to conditions. The second matter is an appeal brought under s 8.9 of the EPA Act in respect of the deemed refusal by the Respondent of Development Application 2020/303 at 128 Bunnerong Road, Eastgardens (the site). 2. The Modification Application seeks to modify the consent granted by Concept Plan Approval DA2019/386, by modifying the terms of Condition 16. 3. The Development Application the subject of this appeal seeks approval for the following: 1. The construction of two free-standing building comprising tower forms above separate podium bases including: 1. Residential apartments together with communal recreational facilities; 2. A supermarket; and 3. Other retail premises; 1. Excavation to create basement levels to accommodate car parking 2. Associated landscaping and servicing infrastructure; 3. A publicly accessible pedestrian through-site link; and 4. Construction and embellishment of private roads. 1. On 20 July 2021, the Court made orders that the appeals be consolidated. 2. The matter was initially listed before me for hearing on 28 September 2021. However, prior to the hearing, the parties advised the Court that the parties had reached an in-principle agreement as to the terms of an agreement that would be acceptable to the parties. 3. Accordingly, the matter was re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act), and the conciliation conference was held on 28 September 2021, at which I presided. 4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 September 2021. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 7. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments: 1. Bayside Local Environmental Plan 2021 (2021 LEP) 2. State Environmental Planning Policy (Infrastructure) 2007 3. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) 4. State Environmental Planning Policy No 55—Remediation of Land 5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow. 2. The development application was lodged on 17 September 2020 under the Botany Bay Local Environmental Plan 2013 (BBLEP). On 27 August 2021, the 2021 LEP commenced, but the savings provision at cl 1.8A states that any application made, but not finally determined, before commencement of the 2021 LEP must be determined as if it had not commenced. 3. The site is located within the R4 High Density Residential zone as identified in the BBLEP. While commercial premises is not a development type permitted under the R4 zone, additional uses permitted on the site are set out in Schedule 1 of the BBLEP, including, at cl 19(2), serviced apartments, commercial premises, and recreation facilities (indoor). 4. Clause 4.4C of the BBLEP requires that consent not be granted to development in the R4 zone unless the consent authority, or the Court on appeal, is satisfied with certain matters set out at subcll (a)-(e). On the basis of the design statement prepared by Mr Jason Fraser, I am satisfied that the proposed development adequately addresses amenity outcomes and the transition in building scale to adjoining properties, and provides appropriate building setback that is consistent with the masterplan forming the basis of the concept plan approval and by reference to the same, I am satisfied that the proposal is consistent with the intended character of the area in terms of building bulk and scale. 5. The site is classified by the Respondent as flood prone, and a Site Flood Assessment has been prepared by WMA Water dated 13 July 2021 which identifies the relevant controls applicable to the site relate to finished floor levels, flood impact and flood risk management. I have considered the conclusions of the WMA Flood Report, and the assessment on pp 13-14 of the Civil Works Report prepared by AT&L dated 9 August 2021 in accordance with cl 5.21(3) of the BLEP. 6. I record here that excavation of the site is not a relevant consideration under cl 6.2 of the BBLEP as development consent in respect of excavation and shoring has been granted. 7. Clause 6.3 of the BBLEP deals with stormwater management, and requires the Court to be satisfied that the proposed development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. On the basis of the Civil Works Report prepared by AT&L dated 9 August 2021, and the landscape plans prepared by Meriton dated 31 August 2021, and detailed landscape plans prepared by Scott Carver of the same date, I am satisfied in respect of those matters at subcl (3)(a)-(c). 8. I note the approval by Sydney Airport Corporation Limited in Appendix B of the Aeronautical Impact Assessment, prepared by Landrum & Brown dated 265 July 2018 of the penetration of prescribed airspace by the proposed development to the height of RL91.0 AHD. I consider the agreed condition of consent at Condition 134 to satisfy the requirements of cl 6.8 of the BBLEP in respect of airspace operations. 9. On the basis of the design statement prepared by Mr Jason Fraser of Woods Bagot, which includes the explanation of how Parts 3 and 4 of the Apartment Design Guide have been almost entirely achieved, the response to the Design Review Panel prepared by Woods Bagot contained in the Affidavit of Ms Stella Zhou dated 9 August 2021, the agreement of the parties, I am satisfied that, having regard to those matters at subcl (4), the proposed development exhibits design excellence in accordance with cl 6.16 of the BBLEP. 10. Clause 6.19 of the BBLEP applies to the site and requires the consent authority, or the Court on appeal, to not grant consent to development unless it is satisfied the development will provide for a minimum of 5,000m2 of gross floor area (GFA) on the land for non-residential purposes, other than for residential accommodation, a car park, or a telecommunications facility. The development does not provide for all of the 5000m2 of non-residential GFA, but a total of 1,462m2 of supermarket retail, and 1,968m2 of 'other retail', according to Architectural drawings DA9400 Revision B. However, as the relevant provision applies to both Lot 1, DP 1187426 and Lot 24, DP 1242288, and the land the subject of the development application is for a part of the site to which the provision applies, being within Lot 1, I am satisfied that the land the subject of the provision at cl 6.19 will provide the non-residential GFA once developed. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) 1. As the site has a frontage to a classified road, being Bunnerong Road, the Court must be satisfied of certain matters at cl 101(2) of the SEPP Infrastructure. On the basis of the recommendations contained in Section 5.3 of the DA Acoustic Assessment report prepared by Acoustic Logic dated 4 August 2021, and the conclusions of the Traffic and Transport Report prepared by ARUP dated 30 August 2021, I am satisfied that the proposed development achieves the requirements of cl 101 of SEPP Infrastructure, and will also meet the requirements of cl 102 of SEPP Infrastructure. 2. I am further satisfied on the basis of the summary contained at Section 5.5.3 of the Traffic and Transport Report that the development is consistent with the provisions of cl 104 of SEPP Infrastructure. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 1. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. 2. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which includes attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement prepared by Mr Jason Fraser (Arch Reg No 8431), dated 27 August 2021 in accordance with cl 50(1AB) of the EPA Regulation, includes attestations in relation to cl 28(2)(b) and (c) of the SEPP 65 to the effect that the design is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide. State Environmental Planning Policy No 55—Remediation of Land 1. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the detailed site investigation prepared by Douglas Partners dated 11 September 2020, and the remediation action plan also prepared by Douglas Partners dated 3 November 2020 and the proposed conditions of consent relevant to the development appeal, at Conditions 50, 87, 88, 89, 93 and 107, I am satisfied that the site will be made suitable for the proposed development before the land is used for that purpose. The modification is of minimal environmental impact and is substantially the same 1. As stated at [2], the modification application seeks to modify the wording of Condition 16 by the addition of the following paragraph: "A reference to the 'Bayside Councils Design Excellence Panel' and the 'design excellence review panel' in this condition includes a reference to the Land and Environment Court on appeal." 1. I record here that I am satisfied that the proposed modification is of minimal or no environmental impact, as the proposed modification is wholly procedural, and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. 2. In forming this opinion of satisfaction, I note firstly that the Bayside Design Excellence Panel, otherwise referred to as the 'design excellence review panel', is not a Design Review Panel as defined by cl 3 of SEPP 65, for which provisions are set out at Part 3 of SEPP 65. 3. Secondly, the proposed modification of Condition 16 is within power as s 39 of the LEC Act provides that the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders Proceedings 2021/189113 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. DA-2019/386 is modified in the terms in Annexure C. 3. Development Consent No. DA-2019/386 as modified by the Court is Annexure D. Proceedings 2021/69719 1. The Court orders that: 1. The appeal is upheld. 2. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. Development Application DA-2020/303 for: * construction of two free standing buildings comprising tower forms above separate podium bases including: * residential apartments together with communal recreational facilities; * a supermarket; and * other retail premises; * associated landscaping, public domain works and servicing infrastructure; * a publicly accessible pedestrian through site link and public open space; and * construction and embellishment of private roads, is determined by the grant of consent subject to the conditions set out in Annexure "A" to this agreement. 1. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. …………………… T Horton Commissioner of the Court Annexure A (454110, pdf) Annexure C (136277, pdf) Annexure D (1112263, 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: 15 October 2021