Parking Station Pty Ltd v Bayside Council [2019] NSWLEC 1268

Land and Environment Court New South Wales

Medium Neutral Citation: Parking Station Pty Ltd v Bayside Council [2019] NSWLEC 1268 Hearing dates: Conciliation conference on 31 May 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [33] below Catchwords: DEVELOPMENT APPLICATION – mixed use development (hotel, offices and long-term car park) – conciliation conference – agreement between the parties – orders Legislation Cited: Botany Bay Local Environmental Plan 1995 Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No. 55 – Remediation of Land State Environmental Planning Policy No. 64 – Advertising and Signage State Environmental Planning Policy (State and Regional Development) 2011 Texts Cited: Botany Bay Development Control Plan 2013 Category: Principal judgment Parties: Parking Station Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: J Lazarus (Applicant)

Solicitors: Dentons (Applicant) J Cole, HWL Ebsworth, Lawyers (Respondent) File Number(s): 2018/136811 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Parking Station Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Bayside Council (the Council) of development application 0.2018.1039.1 (the application). 2. The application seeks approval for a mixed use development comprising: alterations to an approved development by addition of a multi-storey building containing a hotel and restaurant over a long-term car park; a second multi-storey commercial office building; and a new multi-storey commercial building at 342 King Street, Mascot (the site). The site is also known as 5-11 Ewan Street, Mascot having frontage to both King and Ewan Streets and an overall area of 10,590m². 3. The site is zoned B5 Business Development pursuant to the Botany Bay Local Environmental Plan 2013 (the current LEP). The proposed uses are permitted with consent in the B5 zone. 4. The application was notified but no objections were lodged. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) which was held in November, 2018. The parties could not come to an agreement and the matter was set down for hearing commencing June 6, 2019. 6. However, prior to the hearing, the parties continued to confer with respect to amendments to the application and agreed that amendments could be undertaken, supported by both parties, which addressed the contentions raised by the Council in response to the appeal. 7. The parties therefore requested that the hearing be adjourned and the matter listed as a further s 34 conciliation conference at which to present an agreement. I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated. 8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 9. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 10. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 11. In an amended Statement of Facts and Contentions (SFC) filed with the Court by the Council subsequent to the termination of the November 2018 conciliation, and based on an amended application, the Council maintained that a number of contentions remained. These included a concern with the proposed floor space ratio (FSR), the resultant bulk and scale, the design of the buildings and proposed landscaping, and the proposed access, traffic and car parking arrangements. 12. There is a history of development approvals for the site which provide useful background, particularly in terms of the FSR now proposed for the site. 13. In this regard, in December 2012, approval was granted for the construction of a mixed use development. The development included a 12 storey hotel with a multi-storey car park to the rear containing 1,622 parking spaces. Of these spaces, 80 were allocated to the hotel with the balance allocated to long-term parking. The maximum FSR for the site prescribed by the then LEP (LEP 1995) was 1.5:1 and the development was argued to comply by omitting 8 levels of the car park on the basis that these levels did not contain 'external enclosing walls' at 1,400 millimetres above each floor level. 14. The Council did not accept this method for measuring FSR arguing that Levels 1 - 8 contributed to the FSR, increasing it from 1.5:1 to 4.74:1. The Council however, supported a written request to support this FSR on the basis that the development's bulk and scale was commensurate with existing and recently approved developments in the vicinity of the site. 15. The current, then draft, LEP increased the maximum permissible FSR for the site to 3:1 and nominated a revised definition of gross floor area (GFA) that required the exclusion of vertical circulation spaces from GFA calculations. 16. When measured in accordance with the definition under the then draft (now current) LEP, the approved development had an FSR of 3.99:1. The Council considered that the methodology used for calculating the GFA was not appropriate given the floor to ceiling heights for the car park were significantly less than those of a commercial building and on the basis that it did not benefit from any GFA exclusions in the way a typical commercial building would. The contravention of the FSR was therefore considered reasonable given the perceived bulk and scale of the development would accord with that of a compliant commercial building. 17. In July 2015, consent was granted to convert the hotel component of the approved development into serviced apartments with 132 apartments, a restaurant and a bar. The multi-storey car park with 1,622 spaces remained. That application was accompanied by a cl 4.6 variation request that sought to permit a 45% variation to the FSR standard. The request was supported as the FSR resulted from a re-calculation of the approved GFA in accordance with the definition of the new (current) LEP. Accordingly, circulation corridors were included increasing the GFA from 44,665m² (FSR of 4.23:1) to 46,064m² (FSR of 4.35:1). However, the proposal did not amend the bulk or scale of the approved development. As such, it was considered that the increased FSR would not create any additional environmental impacts and strict adherence to the standard would not result in any additional benefits. 18. Since the 2015 consent, the proposed development of the site has been the subject of review by the applicant with a number of modifications approved for minor design changes that did not amend the FSR. 19. Following the termination of the November 2018 conciliation, the application undertook further modifications to respond to the Council's remaining contentions. 20. The amended application the subject of the agreement proposes a hotel and office building in the location of the approved service apartment complex, and the addition of a commercial office building at the Ewan Street frontage. The development has a total FSR of 3.66:1 made up of the following elements: 1. a 10 storey building comprising a 5 storey hotel with 134 rooms (FSR of 0.71:1) with a 4 storey commercial office above (FSR of 0.93:1) along the King Street frontage in the location of the approved serviced apartment complex. The building includes a main lobby, 108 seat indoor/outdoor restaurant, and a 500 patron auditorium. The auditorium will operate as ancillary to the offices, and generally operate outside of standard business hours therefore using the parking allocated to the offices; 2. a 6 storey commercial office building at the Ewan Street frontage above retail uses at street level (FSR of 0.30:1); and 3. retention of the proposed long-term car park with capacity to accommodate 1,012 car spaces and a FSR of 1.72:1. The proposed car park has been reduced from 7 storeys to 6, but with 7 levels (6 above ground and one basement level). 1. The proposed FSR of 3.66:1 exceeds the maximum permissible FSR under cl 4.4 of the LEP of 3.0:1 by 0.66:1. Clause 4.6 of the LEP allows Council to grant consent for development even though the development contravenes a development standard imposed by the current LEP. A cl 4.6 request was lodged with the agreement. The exceedance to the standard is 7,002m² or 18%. 2. The exceedance arises generally from the inclusion of FSR attributable to the long-term car park in accordance with the definitional requirements of the current LEP, as it is not car parking to meet any requirements of the consent authority (including access to that car parking) as per the definition of GFA. 3. Specifically, the LEP requires that car parking provided above the quantity required by the Botany Bay Development Control Plan 2013 (the DCP) be included in the calculation of the building's floor area. As a result, the site is required to provide 384 car spaces whilst the application seeks consent for 1,012 spaces. There are 638 spaces provided in excess of the DCP, comprising the commercial car park, which contributes 18,230m² to the total GFA. 4. A comparison of the approved and proposed GFAs and FSRs is provided below, being Table 2 extracted from the submitted cl 4.6 request. The GFA for the developments has been calculated in accordance with the current LEP: 1. I have reviewed and considered the agreement and am satisfied that the amended cl 4.6 written request demonstrates that compliance with the maximum FSR required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contraventions sought. 2. Further, that the development will be in the public interest as it is consistent with the objective for development in the B5 zone in which the site is situated given the site's specific controls and for the reasons outlined in the submitted cl 4.6 request. 3. In addition, the concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5), also for the reasons outlined in the written cl 4.6 request. 4. The reasons, including the environmental planning grounds, contained in the cl 4.6 written request in support of the FSR variation sought, on which my finding of satisfaction on the proposed variations is based, can be summarised as follows: 1. Compliance with the standard is unnecessary as the proposed development provides for a bulk expected in the zone and complies with other core design standards including height, setbacks, and minimum landscape area requirements; 2. The proposed development reduces the height, bulk and FSR relative to development previously approved on the site. This includes removal of 1 storey of car parking and reducing the height of the building fronting Ewan Street; 3. The development will be commensurate in bulk and scale with surrounding developments; 4. The variation will enable a new active frontage to Ewan Street with commercial uses 'sleeving' the inactivate rear car park elevation. The previously approved scheme provided a car park only to this frontage; 5. The FSR standard has been varied by the Council in granting other consents in the area, including on this site. 6. The variation does not give rise to any adverse environmental impacts to either adjoining properties or the public domain beyond what the approved or a compliant scheme would provide. Specifically, the departure from the maximum FSR control will not result in any significant adverse amenity impacts such as overshadowing, unacceptable traffic generation, privacy impacts, or view loss to surrounding neighbours; 7. The proposal is in the public interest as it accords with the objective for the B5 zone which is to enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres; and 8. There are 7 objectives in the LEP for the FSR standard. These objectives are met including by: 1. not increasing the density on the site beyond that which is already approved and deemed acceptable by the Council; 2. reducing the amount of traffic generation associated with the development and thus the impact on the performance of the intersections surrounding the site; 3. being consistent with the bulk and scale of the existing and desired future character of the locality, which is envisaged to comprise some of the largest scale development in the municipality whilst also meeting the DCP objective for the future character to be airport related uses that have "an affinity or locational need to be near to Sydney (Kingsford Smith) Airport"; 4. at up to 9 storeys, being consistent with the height and scale established by the surrounding urban form including: to the east, on the opposite side of O'Riordan Street, where there are 2 mixed use buildings up to 14 storeys; to the south, being the large scale Stamford Hotel; and to the north where the site is adjoined by 2 hotels up to 13 storeys; 5. maintaining an appropriate visual relationship between the locality's prevailing character and new development with a commensurate building height and compliant building setbacks. The bulk is massed in the northern portion of the site where the site interfaces with larger scale development directly opposite whilst the height fronting Ewan Street is reduced to ensure the proposed bulk and scale is commensurate in height with the surrounding developments to the south that typically consist of smaller scale industrial / commercial developments; 6. with a maximum height of 35m, complying with the LEP maximum height of 44m and reducing the maximum height from 12 to 10 storeys. Accordingly, the development will not adversely affect or dominate the skyline or public domain when viewed from public spaces; and 7. broadening the range of commercial uses on site facilitating economic growth and contributing to the activation of the public domain. 1. The Statement of Environmental Effects (SEE) lodged with the application, and as amended by way of an addendum to reflect the amended application the subject of the agreement, addresses compliance with a number of State Environmental Planning Policies. In this regard, the application did not require a reconsideration of factors relative to the approved development under State Environmental Planning Policy (State and Regional Development) 2011. The same situation arises in terms of State Environmental Planning Policy (Infrastructure) 2007, having a lesser impact on the major roads in the area. Further, an assessment had already been undertaken to address any contamination issues under State Environmental Planning Policy No. 55 – Remediation of Land. 2. The addendum to the SEE does assess the proposed advertising under State Environmental Planning Policy No. 64 – Advertising and Signage (SEPP 64) in terms of the proposed business signage for the proposed uses. I am satisfied that the proposed signage will meet the objectives and assessment criteria of SEPP 64. 3. In terms of the other relevant provisions of the current LEP, I am satisfied that the application has addressed the stormwater management and design excellence provisions at cl 6.3 and cl 6.16 respectively. 4. In terms of cl 6.8 Airspace Operations, the application was referred to, and received concurrence subject to conditions from, Sydney Airport with those conditions imposed on the consent. The development will therefore not impact on the operation of Sydney Airport and the objectives and requirements of that clause have been met, including compliance with the Obstacle Limitation Surface requirements. Similarly the development has been designed having regard to the requirements of cl 6.9 which relates to development in areas subject to aircraft noise. 5. Accordingly, the Court orders that: 1. The applicant is granted leave to rely upon the following amended plans and documents, copies of which are contained at Annexure "A": Drawing No. Author Dated A101 Ground Floor Plan, Rev 05 Vanovac Tuon Architects 1 May 2019 A420-01 Hotel and Office car park entry Vanovac Tuon Architects 11 April 2019 Documents Author Date Received Structural certificate Costin Roe Consulting 11 April 2019 Development Summary 338 King Street, Mascot Vanovac Tuon Architects 16 April 2019 Statement of Environmental Effects Addendum Ethos Urban 16 April 2019 Clause 4.6 Variation to FSR, Rev. 05 Ethos Urban 2 June 2019 Supplementary Traffic and Parking Advice, Reference: 18077.07FA Mclaren Traffic Engineering 16 April 2019