Land and Environment Court New South Wales Medium Neutral Citation: Zervos v Bayside Council [2021] NSWLEC 1729 Hearing dates: 19 November 2021 Date of orders: 29 November 2021 Decision date: 29 November 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: 1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $20,000.00 within 28 days. 2) The appeal is upheld. 3) Development Application No. DA2019/354 for the demolition of some existing structures, restoration of historical street front commercial premises along with the construction of a 5 level mixed use building comprising ground floor retail/business, a boarding house containing 13 boarding rooms including a manager's room, and alterations to an existing apartment at 30 Firth Street, Arncliffe, is approved subject to the conditions at Annexure A. Catchwords: APPEAL – development application – mixed use development including boarding house – conciliation conference – agreement reached – orders made Legislation Cited: Bayside Local Environmental Plan 2021 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1 Land and Environment Court Act 1979, s 34 Rockdale Local Environmental Plan 2011, cll 1.8A, 4.3, 4.4, 4.6, 5.10, 6.4, 6.7, 6.11, 6.14 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Infrastructure 2007), cl 87 Category: Principal judgment Parties: Bill Zervos (Applicant) Bayside Council (Respondent) Representation: Counsel: R O'Gorman Hughes (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Jacovou & Co Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/168555 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of some existing structures, restoration of a historical street front, and works for the purpose of a 5-level mixed use development comprising ground floor retail/business premises and a 13 room boarding house (including the manager's room) at 30 Firth Street, Arncliffe. A development application was lodged with Bayside Council on 2 October 2019, with an initial proposal for 15 boarding rooms and an outdoor car stacker. The development application was subsequently refused by the Council on 15 December 2020. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [16] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 19 November 2021. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on the same date, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments to the development application include the preservation and upgrade of the existing corner shop street frontage, which dates back to the 1900s, and restoration of a front veranda awning over the street. They also include design changes so that the new addition is more sympathetic to the local character and the heritage significance of the building, including the removal of the car stacker arrangement. The amendments also incorporate changes to provide greater visual and acoustic privacy, adequate landscaping and improved residential amenity. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites, which was filed on 22 November 2021. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below. 6. The site is zoned B4 Mixed Use pursuant to the Rockdale Local Environmental Plan 2011 (RLEP), and development for the purpose of boarding houses and commercial premises is permissible in the zone. 7. On 27 August, the RLEP was repealed and the Bayside Local Environmental Plan 2021 (BLEP) was commenced. By virtue of the savings provision at cl 1.8A of the BLEP, the development application must be determined as if the BLEP had not commenced. Nevertheless, the site remains zoned B4 Mixed Use under the BLEP and development for the purpose of boarding houses and commercial premises remain permissible on the site, and the same development standards apply. 8. In relation to the relevant provisions in Parts 5 and 6 of the RLEP: * The parties agree, and I accept, that I can be satisfied that the development exhibits design excellence, as required by cl 6.14(4) of the RLEP. The preservation and upgrade of the existing corner shop street frontage, the restoration of the front veranda awning, the design of the new additions and their set back from the street frontage, and the amenity achieved for the boarding rooms, all contribute to design excellence. * The parties agree, and I accept, that the proposed development will not penetrate the Limitation or Operations Surface for the Sydney (Kingsford-Smith) Airport and cl 6.4 of the RLEP is therefore not enlivened. * Clause 6.7 of the RLEP requires the Court, in exercising the functions of the consent authority, to be satisfied of a number of matters concerning the use and re-use of stormwater. I am satisfied, based on the stormwater concept plans, that the proposed development has a stormwater design that will capture rainwater for the purpose of irrigation and will avoid disturbance and impact of stormwater runoff, as required by cl 6.7(3). * Clause 6.11 of the RLEP applies to the site, and requires the Court, in exercising the functions of the consent authority, to be satisfied that the building will have an active street frontage. I am satisfied that the preservation of the shop street front and the restoration of the veranda, together with the ground floor retail/business use, will ensure that the building will have an active street frontage. * Whilst the site is not a heritage item under the RLEP, the street on which the site is located is identified on the Heritage Map and the site is in close proximity to heritage items. Consistent with cl 5.10(4), I have considered the effect of the proposed development on the heritage significance of the site and the surrounding heritage items, and I accept that the design of the proposed development is acceptable as it ensures the retention and restoration of the original façade of the historic Arncliffe pharmacy previously located on the site. 1. The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. At cl 30, consent cannot be granted unless certain requirements are met. Based on the agreed statement on the jurisdictional pre-requisites and on the architectural plans, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development. 2. With respect to the development standards that apply to the proposed development on the site: * Clause 4.4 of the RLEP imposes a floor space ratio (FSR) development standard of 2:1. The proposed development does not comply with this development standard, but the operation of cl 29(1)(c)(i) of the SEPP ARH precludes a consent authority from refusing consent on the grounds of density or scale if the FSR is not greater than the standard plus an additional 0.5:1. As such, the total FSR permitted on the site for the proposed development is 2:5:1, with which the development complies. * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 16m, pursuant to cl 4.3 of the RLEP. The proposed maximum height of 17.42m represents a contravention of 1.42m above the numerical standard. The contravention is confined to the north side of the building and components of the roof slab, skylights, AC units, lift overrun and parapet. The parapet is part of the design response for a sympathetic design to preserve the historic building façade. I am satisfied that the written request, lodged pursuant to cl 4.6 of the RLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach enables the permitted floor space in the new upper levels to be distributed away from the street frontages at setbacks greater than the lower levels where the shop front is being restored, which facilitates a superior urban design outcome than what would be achieved if the floor space was provided within those street front setbacks (which is permitted by the controls) to achieve a compliant height. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 1. Clause 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area". I am satisfied that the design of the development, including its restoration of the shop front and veranda awning, with the additional levels setback away from the street frontages, achieves a design that is compatible in the streetscape and with the heritage items within the vicinity of the site that form part of its character. 2. In addition, the following prerequisites to the grant of development consent are satisfied: * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. The land has been continually used for commercial purposes, and a dry cleaning outlet previously located on the site did not carry out any dry cleaning activity on the site. Accordingly, there are no previous uses of the site that are likely to have caused contamination and the site is unlikely to be contaminated. * Clause 87 of the State Environmental Planning Policy (Infrastructure) 2007 concerns development for the purposes of residential accommodation adjacent to rail corridors, and applies to the proposed development. Based on the acoustic report of Koikas Acoustics 17 November 2021, I have considered the guidelines issued by the Secretary, as required by cl 87(2) and I am satisfied that the acoustic criteria in cl 87(3) will be met, subject to the implementation of a number of recommendations in the report, which are required to be complied with in the agreed conditions of consent. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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 EPA Act. 3. The Court notes: 1. That Bayside Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA2019/354 to rely on the plans and documents referred to in the annexed conditions of consent. 2. The Applicant uploaded the amended application on the NSW planning portal on 18 and 19 November 2021. 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $20,000.00 within 28 days. 2. The appeal is upheld. 3. Development Application No. DA2019/354 for the demolition of some existing structures, restoration of historical street front commercial premises along with the construction of a 5 level mixed use building comprising ground floor retail/business, a boarding house containing 13 boarding rooms including a manager's room, and alterations to an existing apartment at 30 Firth Street, Arncliffe, is approved subject to the conditions at Annexure A. ………………………. Joanne Gray Commissioner of the Court (Annexure A) (353160, 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: 29 November 2021