J & J Mascot Developments Pty Ltd v Bayside Council [2023] NSWLEC 1666

Land and Environment Court New South Wales

Medium Neutral Citation: J & J Mascot Developments Pty Ltd v Bayside Council [2023] NSWLEC 1666 Hearing dates: Conciliation conference held 20 June, 17 July, 25 August, 11 and 18 September, 3 and 9 October 2023 Date of orders: 08 November 2023 Decision date: 08 November 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-2021/373 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $28,000 within 60 days of the date of these orders. (3) The Applicant's written request, pursuant to clause 4.6 of the Botany Bay Local Environmental Plan 2013 (BBLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the BBLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA-2021/373 (as amended) for demolition of existing structures and construction of a part four- and part five-storey mixed use development comprising a commercial tenancy and 45 residential units, with two levels of basement car parking and associated landscaping and site works at 1077 Botany Road, Mascot, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – mixed use development – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Airports (Protection of Airspace) Regulations 1996 Bayside Local Environmental Plan 2021 Botany Bay Local Environmental Plan 2013, cll 2.3 4.3, 4.6, 5.10, 6.1, 6.2, 6.3, 6.8, 6.9, 6.15 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Land and Environment Court Act 1979, s 34 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, ss 2.48, 2.119, 2.120, 2.122 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018 Category: Principal judgment Parties: J & J Mascot Developments Pty Ltd (First Applicant) P & J Mascot Developments Pty Ltd (Second Applicant) Bayside Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (First and Second Applicant) P Brown (Solicitor) (Respondent)