Land and Environment Court New South Wales Medium Neutral Citation: 1356 Botany Road Pty Ltd v Council of the City of Botany Bay [2015] NSWLEC 1325 Hearing dates: 28 April 2015, 9 July 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. Development Application 14/108 for the demolition of all improvements and the construction of a mixed use development comprising 2 and 4 storey apartments, a ground floor supermarket and two basement levels of car parking at 1356-1362 Botany Road, Botany is approved subject to the conditions in Annexure A. 3.The exhibits are returned with the exception of exhibits 3 and A. Catchwords: DEVELOPMENT APPLICATION: demolition of all improvements and the construction of a mixed use development – Legislation Cited: Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 Category: Principal judgment Parties: 1356 Botany Road Pty Ltd (Applicant) Council of the City of Botany Bay (Respondent) Representation: Mr M Staunton, barrister (Applicant) Ms S Duggan SC (Respondent) Gadens Lawyers (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 10558 of 2014 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates the refusal of Development Application 14/108 for the demolition of all improvements and the construction of a mixed use development comprising 2 and 4 storey apartments, a ground floor supermarket and two basement levels of car parking at 1356-1362 Botany Road, Botany (the site). 2. The council maintains that application should be refused because the proposed development will: * have a detrimental impact on the heritage significance of the heritage item nearby, being the Sir Joseph Banks Hotel, * not respond to the existing and future character and streetscape by unacceptable scale, height and form particularly through inadequate upper level setbacks, * not have sufficient site area to properly address noise, garbage collection and loading dock activities with a consequent impact on the amenity of local residents, * not provide adequate internal amenity for the proposed apartments, * not provide adequate off street parking, * not provide adequate landscaping, and * not be consistent with the zone objectives. 1. At the site inspection on the first day of the hearing, and after a number of residents had expressed their concern over a number of aspects of the proposed development, the parties agreed that changes could be made to address the concerns of the council and the residents. Following the site inspection the experts in the areas of town planning, traffic and parking, heritage and urban design had further discussions and agreed that if certain changes were made then it was agreed, in principle, that their preciously advised concerns were addressed. The modifications sought by the experts were described and shown on a plan and signed by each of the experts. Council acceptance of the changes was also subject to the re-advertising of the amended design. 2. Leave was granted at the hearing on 9 July 2015 to rely on the amended design and the council did not seek to provide any expert evidence. The council also tendered a bundle of submissions that were sent to the council when the amended design was advertised. The site 1. The site is irregular in shape with frontages to Botany Road, Waratah Road and Hanna Street of 41.645m, 36.180m and 42.415m respectively. The site also has a side boundary of 43.665m along its eastern side along its eastern side to an adjoining dwelling house. The total site area is 2,707.1 sq m. 2. The site forms part of the Broadmeadow Town Centre. To the west is the commercial centre of Botany township, which runs approximately between the Botany Road cross-streets of Bay Street and Hale/Hastings Street. It is located 1.1 kms from the site. Botany Road is characterised by retail and commercial development, predominantly 2 storey in nature, with some residential first floor uses through the centre. Low and medium density residential development adjoin the retail and commercial development. 3. The subject site is situated on a classified road within close proximity to Port Botany and Sydney Airport. Relevant planning controls 1. The subject site is within Zone B1 - Neighbourhood Centre zone pursuant to Botany Bay Local Environmental Plan 2013 (LEP 2013) gazetted on the 21 June 2013. A mixed use development is permissible, with consent in this zone. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 1. The zone objective is: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. 1. Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The site has a maximum height of 14 m. 2. Clause 4.4(2) provides that the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The site has a maximum FSR of 2:1. 3. Part 2 of Sch 5 Heritage conservation areas is relevant. The site lies directly opposite the Sir Joseph Banks Hotel (the Hotel) which is located on the south western corner of Waratah and Botany Roads. The Hotel is a Heritage Item of Local Significance (Item No. 172) under Council's Botany Bay Local Environmental Plan 2013. 4. Clause 5.10(4) provides that: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. Clause 5.10(5) provides that: The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. 1. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)). 2. City of Botany Bay Development Control Plan (the DCP) applies. The relevant parts of the DCP are Parking and Access (pt 3A), Heritage (pt 3B) and Aircraft Noise (pt 3J). Part 5 addresses Business Centres with the site being located in the Banksmeadow Neighbourhood Centre. Specific requirements for the Banksmeadow Neighbourhood Centre are in pt 5.2.2.3. The amended design 1. Mr Staunton, for the applicant, explained the changes that led to the council not seeking to provide any expert evidence on the amended design. Based on the Amended Statement of Facts and Contentions, the following changes were made: * the required 14 m setback was provided to address the visual setting of the nearby heritage item, * the predominant and characteristic height of buildings in the neighbourhood, and the height, bulk and density was addressed through the 14 m setback, an increase in other setbacks, compliance with the height requirement (except for the small area of the lift overrun), compliance with the FSR requirement and removal of balcony intrusions. As the lift overrun exceeds the maximum height, a written request was provided that seeks to support the variation of the development standard in accordance with cl 4.6(3). Having read the cl 4.6 written request, I agree that the variation is not unreasonable or unnecessary in the circumstances, * the amenity of nearby properties is addressed through the redesign of the delivery area, satisfaction of the acoustic experts in terms of any noise from the supermarket and ancillary areas and adequate setbacks to nearby residential properties, * the internal amenity is addressed through compliance within the requirements for unit size and solar access, * car parking is addressed through compliance with the council requirements for the different land uses, including parking in Waratah Street. 1. I have reviewed the submissions provided to the council when the amended design was advertised and find no objections that would warrant the refusal of the application or further amendments. 2. The only condition in dispute relates to the proposed on-street parking in Waratah Street. The council seeks a deferred commencement condition whereas the applicant proposes an operational condition (condition 17) that must be satisfied prior to the issue of a Construction Certificate. 3. I am satisfied that the applicants approach is acceptable and provides sufficient certainty for the on-street parking in Waratah Street will be provided Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application 14/108 for the demolition of all improvements and the construction of a mixed use development comprising 2 and 4 storey apartments, a ground floor supermarket and two basement levels of car parking at 1356-1362 Botany Road, Botany is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 3 and A. _______________ G T Brown Acting Senior Commissioner 10558 of 2014 (C) gtb (469 KB, 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: 11 August 2015