Land and Environment Court New South Wales Medium Neutral Citation: Isak Investments Pty Ltd v City of Botany Bay Council [2015] NSWLEC 1397 Hearing dates: 5,6 August 2015 Date of orders: 06 August 2015 Decision date: 06 August 2015 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is dismissed. 2. Development Application No 12/230 for the construction of a 12 storey hotel building containing 233 rooms and ancillary facilities, retail and commercial space and 4 levels of basement car parking at 210 O'Riordan Street and 135-137 Baxter Road, Mascot is refused. 3. The exhibits are returned with the exception of exhibits 1 and B. Catchwords: DEVELOPMENT APPLICATION: construction of a hotel with ancillary facilities, four levels of basement car parking and associated landscaping works – whether SEPP 1 objection to FSR well founded - whether additional street setbacks required Legislation Cited: Botany Bay Local Environmental Plan 1995 Botany Bay Development Control Plan 2013 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Cases Cited: Wehbe v Pittwater Council [2007] 156 LGERA 446 Category: Principal judgment Parties: Isak Investments Pty Ltd (Applicant) City of Botany Bay Council (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Ms H Irish, barrister (Respondent) Solicitors: Bartier Perry (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 11057 of 2014 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal by the City of Botany Bay of Development Application No. 12/230 for the construction of a 12 storey hotel containing 233 rooms, with ancillary facilities such as restaurant, bar, retail space and commercial area, four levels of basement car parking to accommodate 93 car spaces, and associated landscaping works. 2. By way of background, Development Consent No. 08/132 was issued by the council on 26 March 2009 for a commercial office building on the site with an FSR of 7.28 to 1. This consent has been activated by physical commencement. The applicant placed some emphasis on this approval in support of the proposed development. 3. The applicant submitted amended plans on 23 April 2015 making the following changes to Development Application No. 12/230. 1. The provision of a minimum of 3 m of landscaping to O'Riordan Street and part of Baxter Road. 2. Changes to allow access to the basement from within the site rather than only from Baxter Road. 3. Screening height reduced and 1 m of landscaping provided to the eastern boundary. 4. Façade changes including landscaping. 5. Setbacks to the serviced apartment development (Quest Apartments) increased to levels two and four and above. 1. The amended plans represent the applicant's principal position at the hearing however, further sketches were provided as an alternate position if the Court did not accept the applicant's principal position. The sketches generally provided greater setbacks, although the setbacks were still not sufficient according to the council's experts. 2. The site is 210 O'Riordan Street and 135 to 137 Baxter Road, Mascot. The site was formerly seven separate allotments. However, following lodgment of the application, the site was amalgamated and is now known as lot 1 in DP1190559. It is located in a prominent position with three street frontages to O'Riordan Street, Robey Street and Baxter Road. The site has a total frontage of approximately 53.89 m to O'Riordan Street, 30.64 m to Robey Street and 37.59 m to Baxter Road. 3. The area is characterised by a mix of residential, commercial, industrial and airport related industrial uses. Immediately adjoining the site to the east on Robey Street is a serviced apartment development (the Quest Apartments) -and a mixture of commercial industrial uses and low density residential development on its northern side. The neighbouring site to the east along Baxter Road contains a single building. On the western side of O'Riordan Street opposite the subject site is a multi-storey building comprising the Stamford Hotel and Airport Central. 4. The site is currently zoned B5 Business Development under Botany Local Environmental Plan 2013 (LEP 2013), which was gazetted on 21 June 2013. The use of the land as a hotel is an innominately permissible use in the zone being defined as "tourist and visitor accommodation". The savings provision at cl 1.8A of DLEP 2012 state, If a development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if the plan had not commenced. 1. At the time of lodgment of the application, LEP 2013 was Draft Botany Local Environmental Plan 2012 (DLEP 2012). 2. LEP 2013 provides for a maximum height of 44 m and a maximum FSR for the site. Botany Bay Development Control Plan 2013 (DCP 2013) operates in conjunction with LEP 2013. As the development application was lodged but not determined prior to the coming effect of LEP 2013, cl 1.8A applies. The environmental planning instrument that applied prior to LEP 2013 was Botany Bay Local Environmental Plan 1995 (LEP 1995), where the site was zoned 4C2 (Industrial). Under LEP 1995, the development would have a gross floor area of 13,380 sq m, with a consequential FSR of 6.6 to 1. The LEP 2013 development standard for FSR is 1.1 or 1.5 to 1 for hotels, subject to satisfaction with the requirements in cl 12(4). 3. A range of development control plans apply to LEP 1995, although DCP 33 was the most relevant in this case. Given the savings provisions in cl 1.8A, the parties agreed that the principal environmental planning policy for the assessment of the application is LEP 1995. Consequently, the consideration of the variation to the FSR development stand should be undertaken through State Environmental Planning Policy No 1 - Development Standards (SEPP 1) rather than cl 4.6 in LEP 2013. 4. The contentions raised by the council, centre on the inadequate setbacks of the proposed building that firstly, unacceptably increase the bulk and scale of the building, and secondly do not provide a suitable transition with adjoining and future existing buildings. 5. Expert evidence was provided for the applicant by Mr Michael Neustein, an architect and planner, and Mr Russell Olsson an architect and urban designer. Council provided evidence from Mr James Lidis, a town planner, and Mr Alan Cadogan, an urban designer. Mr Neustein provided the SEPP1 objection to support the variation to the FSR development standard in LEP 1995. The SEPP1 objection identified that the standard was a development standard and the FSR in cl 12(3) of LEP 1995 was 1.5 to 1, whereas the application proposes an FSR of 6.26 to 1. 6. While cl 12(3) of LEP 1995 does not identify any specific objectives for the development standard, the SEPP1 objection adopts the following objectives for the purpose of the objection. 1. To ensure the bulk and scale of proposed development is appropriate for the site. 2. To ensure the intensity of the development is appropriate in its context. 1. These objectives were seen by all the experts as being suitable objectives for a FSR development standard. The SEPP1 objection finds that the proposed development meets the objectives of the development standard. 2. On the first objective, the SEPP 1 objection states that the site is a key gateway location to the Sydney Airport Precinct, as approached from the north along O'Riordan Street. The principal curved façade addressing the O'Riordan and Robey Streets corner relates to and reflects the geometry, scale and form of its neighbour. The proposed building will have the effect of balancing the streetscape and provide an appropriate urban design solution for the entrance to the airport gateway precinct. This assessment is also supported by the council's Design Review Panel. 3. The site is a corner site with street frontages to the north, south and west. To the east fronting Robey Street, is the existing Quest Apartments development. Also to the east fronting Baxter Road are three smaller lots 125 to 133 Baxter Street, one of which is currently used for residential purposes. Mr Neustein accepts there will be some overshadowing impacts on these neighbouring dwellings in the afternoon hours. However, the three sites have been upzoned and can be expected to be redeveloped for the purpose of hotel accommodation or other airport related uses. Under the amended scheme, the south eastern corner of the building above the vehicle access to Baxter Street has been deleted and the boundary screen wall to the neighbouring dwelling at 133 Baxter Street is reduced to 2.5 m to 4 m depending on the position of the slope. 4. In relation to the second objective, the SEPP1 objective states that since the council's Design Review Panel carried out its analysis, the scheme has been amended with a reduction in FSR to 6.26:1. The panel's comments are still relevant according to Mr Neustein. Located in the immediate vicinity of the airport, the sight is part of a specially designated transport gateway, the Sydney Airport Precinct under Sydney Metropolitan Strategy 2014. This strategy highlights the imperative of protecting Sydney Airport's function as international gateway for passengers and freight and support airport related land uses and infrastructure in the area around the airport. The hotel will have 233 rooms and provide direct employment for between 50 and 100 persons. Within the gateway precinct, the site is located at the physical and urban design gateway and this justifies a dominant presence in the streetscape, whether seen from the airport or looking south along O'Riordan Street. 5. The SEPP1 objection also states that the underlying purpose of the current FSR control is not relevant to this gateway development at the gateway location. Only a variation to the FSR standard will allow the site to fulfil its gateway role within a special economic employment centre under the Sydney Metropolitan Strategy 2014. An increase in the permissible FSR above that permitted under LEP1995 and also LEP 2013 is necessary to enable the development of the site to compliment the height and scale of the 12 storey Stamford Airport Central building providing an appropriate and dominant gateway treatment to the entry to the airport precinct. A building of the height, scale and design of this subject application is required if the council supports the desired airport gateway urban design vision. 6. The SEPP1 objection further states that the FSR development standard in LEP 1995 has been virtually abandoned or destroyed by the substantial degree of flexibility administered by the council in the approval of other nearby developments. 7. The SEPP1 objection concludes that strict compliance with the FSR development standard is unreasonable and unnecessary in this case where it prevents a desirable urban design outcome and consequently the objection is well founded. 8. This was not a conclusion accepted by the council experts, although their evidence suggested that not such a large difference existed between the parties. Mr Lidis and Mr Cadogan agreed that the height of the proposed development was acceptable. I did not understand that they raised any significant objection to the amount of floor space, but their concerns related to the distribution of the floor space and principally, the location of the floor space within areas of the building close to the three street frontages. In essence, their concerns could be stated as the building setbacks are inadequate and should be increased. 9. While accepting that both DCP 2013 and DCP 33 require a 9 m setback to O'Riordan Street, the council experts propose a 4 m setback to allow landscaping, including trees. Under the current proposal, trees are located in the road reserve. The 3 m setback to Robey Street and Baxter Road provide a more suitable relationship with the Quest Apartment building on Robey Street and future development on Baxter Road. For these reasons the council experts conclude that the SEPP1 objection is not well founded. 10. In relation to the assessment of a SEPP1 objection, the decision of Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446, identifies a number of ways of establishing that compliance is unreasonable or unnecessary. The most commonly invoked way, and the way addressed in this matter is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding noncompliance with the standard. 11. As set out in Wehbe, the Court must be satisfied of three matters before it can uphold the SEPP1 objection and then consider the merits of the application. The three identified matters are: 1. The Court must be satisfied that the objection is well founded. 2. The Court must be of the opinion that granting of consent to the development application is consistent with the aims of ASEPP 1 as set out in cl 3. The aims and objects of SEPP1 set out in cl 3 are to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the object specified in section 5(a)(i) and (ii) of the Act. 3. The Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP1 justifies upholding of the SEPP1 objection. 1. In considering the above matters, I ultimately agree with the conclusion of the council experts. It is somewhat unusual that there was no significant objection to the quantum of floor space, but only to the location in the distribution of floor space where the council experts maintain there should be no floor space within 4 m of O'Riordan Street, 3 m of Robey Street and Baxter Road. 2. I do not disagree with the general approach of all the experts that the development of the site should have the amount of floor space as it provides a good fit with the adjoining and nearby properties. 3. Even though Mr Cadogan suggested that the FSR proposed was best dealt with as a planning proposal, I accept the submission of Ms Duggan that SEPP1 has no numerical restrictions on its use. This, however, does not address the situation where the site has a maximum height of 44 m but only an FSR of 1.5 or 3:1 (under the controls in LEP 2013). The 3:1 FSR under LEP 2013 is clearly better or more representative of an appropriate building form than the FSR of 1.5 under LEP 1995 but it is still unsatisfactory, particularly when there is a 44 m maximum height limit and little dispute on the quantum of floor space appropriate for the site. 4. Planning by SEPP1 objections is not a satisfactory approach to proper planning, particularly given the context where there are many buildings with significant height and floor space and also, its important location near Sydney Airport. While there was much discussion on whether the site was a gateway site, I accept the description that the site is within a "gateway area" in DCP 33. It was not in dispute that the site and surrounding areas is a visually important area because of its close relationship with Sydney Airport. While Mr Cadogan expressed some concerns over the design of the proposed development, I also agree with the applicant's experts and also the council's Design Review Panel that it is a design that will sit very comfortably within the gateway area, but in my view, subject to the increased setbacks suggested by the council's experts. 5. I note the DCP 33 provides requirements on landscaping, particularly in pt C(1). I do not accept that the proposed landscaping and limited setbacks to particularly the Robey Street and Baxter Road, meets the objective that seeks to ensure development is appropriate for the site in terms of bulk and scale. The bulk and scale will be visibly reduced, although not excessively, with increased setbacks and the provision of landscaping consistent with that anticipated by the council planning controls. The landscaping within the road reserve could potentially be lost with the road widening of O'Riordan Street in the future. This is not a situation that could be contemplated, particularly when landscaping reduces the bulk and scale of the building. 6. I am also satisfied that the proposed development does not meet the second objective. While I acknowledge that attempts have been made to improve the relationship with the adjoining properties in Robey Street, I do not accept that it results in an acceptable level of compatibility. There is a distinct and noticeable inconsistency in setbacks where the two buildings meet and this reflects poorly in the streetscape. 7. While there was agreement that the pedestrian environment is relatively hostile because of the high traffic levels, a greater setback with more landscaping provides a less hostile environment. The greater setbacks and landscaping also provide a more attractive appearance consistent with its location in a gateway area. Similarly, a zero setback at Baxter Road is unacceptable, even though it is separated from the adjoining property by a driveway. In the longer term when the adjoining properties in Baxter Road are redeveloped, there should be some consistency in setbacks to support the character anticipated by the council planning controls in relation to setbacks and landscaping. 8. For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP1 objection is not consistent with the aims of SEPP1. Also, strict compliance with the development standard in this case is not unreasonable and unnecessary, tends to hinder the attainment of the objects specified in s 5A(1) and (2) of the Environmental Planning and Assessment Act 1979. 9. Consequently, the SEPP1 objection is not well founded and the development application must be refused and the orders of the Court are 1. The appeal is dismissed. 2. Development Application No 12/230 for the construction of a 12 storey hotel building containing 233 rooms and ancillary facilities, retail and commercial space and 4 levels of basement car parking at 210 O'Riordan Street and 135-137 Baxter Road, Mascot is refused. 3. The exhibits are returned with the exception of exhibits 1 and B. ______________ G T Brown Acting Senior Commissioner 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 September 2015