Land and Environment Court New South Wales Medium Neutral Citation: Page v Bayside Council [2023] NSWLEC 1565 Hearing dates: Conciliation conference on 20 September 2023 Date of orders: 27 September 2023 Decision date: 27 September 2023 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA-2021/444, as amended, for the demolition of existing structures and construction of a three (3) storey dwelling including a detached garage and an inground swimming pool on land legally described as Pt 5 Sec A DP 1787 and known as 1345 Botany Road, Botany, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – new dwelling – heritage – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Bayside Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8, Sch 5 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48, Div 12 Subdiv 2; s 2.118 Category: Principal judgment Parties: Benjamin Simon Page (Applicant) Bayside Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/134176 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the refusal of Development Application No DA-2021/444, as amended, for the demolition of existing structures and construction of a three (3) storey dwelling including a detached garage and an ingound swimming pool at 1345 Botany Road Botany legally described as Part 5, Section A DP 1787 (the site). 2. Amended plans were filed with the Court on 19 September 2023 (amended development application) cited at [27]. The amendments can be summarised as follows: * Changes to the dwelling roof form and garage ridge * Overall reduction of the first floor and internal reconfiguration * Amendments to the garage storage * Rear balcony changes * Resultant improvements to solar access to the adjoining dwelling * Additional privacy screens * Colours and materials changes * Increase in the height of the front fence 1. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 September 2023. I have presided over the conciliation conference. 2. 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. This decision involved the Court upholding the appeal for the amended development application and granting development consent to the amended development application subject to conditions. 3. Accompanying the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 4. 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. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, subject to conditions of consent. Jurisdictional Prerequisites 1. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 set out below. 2. The original development application was lodged with the Respondent on 17 September 2021. I am satisfied that owners consent accompanied the amended development application for the subject site. 3. The Respondent notified the development application on several occasions: * From 27 September 2021 to 11 October 2021 where seven submissions were received; * From 15 June 2022 to 29 June 2022 where four submissions were received; and * From 22 September 2022 to 7 October 2022 where no further submissions were received. 1. The Respondent, as consent authority, has considered the submissions received throughout the process. Bayside Local Environmental Plan 2021 1. The subject site is zoned R3 Medium Density Residential pursuant to the Bayside Local Environmental Plan 2021 (BLEP), where the proposed development is permissible with consent. In accordance with cl 2.3, I have had regard to the objectives of the zone: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure land uses are carried out in a context and setting to minimise impact on the character and amenity of the area. • To enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling. 1. Clause 4.3 Height of buildings applies to the site, setting a maximum height of 10m. The parties agree and I accept that the proposal is below the maximum height limit at 9.805m on the basis of the architectural plans at Annexure A and the joint expert report filed to the Court on 4 September 2023 (expert report). 2. Clause 4.4 Floor space ratio (FSR) applies to the subject site, which permits a maximum FSR of 0.85:1. The parties agree and I accept that the proposal is below the maximum permitted FSR on the basis of the calculations within the expert report, at 0.842:1. 3. The subject site is located within the Botany Township Heritage Conservation Area in accordance with cl 5.10 Heritage conservation and Sch 5 of the BLEP. On the basis of the Heritage Impact Statement report authored by Dunn and Hillam Architects dated 9 September 2022 (HIS) and the expert report, I accept the parties agreed evidence that the changes made through the amended development application responds appropriately to the Botany Township Heritage Conservation Area as required by cl 5.10. 4. Clauses 5.21 Flood planning and 6.3 Stormwater and water sensitive urban design apply to the site. The parties agree and I am satisfied that the provisions of the clauses have been met on the basis of the amended Stormwater Concept Drainage Plan prepared by BMB dated 31 August 2023 and the conditions of consent at Annexure A. 5. Clause 6.1 Acid sulfate soils applies to the site, being within Class 4 soils. I accept the evidence of the parties that the excavation is less than 2m in depth on the basis of the Sections and Details plan prepared by JCM Designs dated 9 September 2023 and the provisions of cl 6.2(3) are not engaged. 6. Clause 6.8 Development in areas subject to aircraft noise applies to the site. The parties agree and I accept that the acoustic requirements are met by the proposal with consideration of the Aircraft Noise Intrusion Assessment prepared by Michael Phillips Acoustics dated 29 August 2023 and the conditions of consent at Annexure A. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The parties agree and I accept that the amended development application is accompanied by an amended BASIX Certificate that satisfies the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) apply to the site. The amended development application does not change the previous use of the site as a residential property and has a long history of residential use. I am satisfied with consideration of the HIS that the provisions of s 4.6 of SEPP Resilience have been adequately addressed. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Section 2.48 Determination of development applications – other development applies to the site. I have considered the provisions of the section and on the basis of the Respondent's assessment report considered by the Bayside Local Planning Panel on 23 August 2022 (assessment report), the response received from Ausgrid has been appropriately incorporated into the conditions of consent at Annexure A. 2. Division 12A, Subdiv 2 Development adjacent to pipeline corridors applies to the site. On the basis of the assessment report and the associated referral comments from the relevant authority, I consider that the provisions have been met. 3. Section 2.119 Development with frontage to a classified road applies to the site. The amended proposal does not seek access from the classified road, being Botany Road. With regard to acoustic impacts, I have considered the Environmental Noise Impact Assessment prepared by Michael Phillips Acoustics dated 7 June 2022, the assessment report and the conditions of consent at Annexure A. The parties agree and I am satisfied that the provisions of s 2.119 have been met. Conclusion 1. 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. 2. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. 3. 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. 4. The Court notes: 1. That the Respondent, as the relevant consent authority, has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. DA-2021/444 in accordance with the plans and documents listed below: * Architectural Plans (Revision 8) dated 9 September 2023, prepared by JCM Designs. * An amended BASIX Certificate, No 1415750S_02, dated 5 September 2023 and prepared by Firstyle Homes. * Amended Stormwater Concept Drainage Plan dated 31 August 2023, prepared by BMB Engineers. * An Aircraft Noise Intrusion Assessment, dated 29 August 2023 and prepared by Michael Phillips Acoustics. 1. The Applicant has filed a copy of the amended plans and documents on 19 September 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application DA-2021/444, as amended, for the demolition of existing structures and construction of a three (3) storey dwelling including a detached garage and an inground swimming pool on land legally described as Pt 5 Sec A DP 1787 and known as 1345 Botany Road, Botany, subject to the conditions at Annexure A. S Porter Commissioner of the Court Annexure A ********** 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: 27 September 2023