Robey Mascot Pty Ltd v Bayside Council [2019] NSWLEC 1561

Land and Environment Court New South Wales

Medium Neutral Citation: Robey Mascot Pty Ltd v Bayside Council [2019] NSWLEC 1561 Hearing dates: Conciliation conference on 8 November 2019 Date of orders: 19 November 2019 Decision date: 19 November 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders:

(1) The appeal is upheld.

(2) Modification Application No. BDA-2016/165/A to modify the development consent to DA2016/165 granted by the Respondent on 17 May 2018 is determined by approving the modification as set out at Annexure "A".

(3) As a consequence of (2) above, Development Consent 2016/165 is now subject to the consolidated modified conditions of development consent set out in Annexure "B". Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Robey Mascot Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: J Oldknow (Solicitor) (Applicant) A Epstein (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/161535 Publication restriction: No

Judgment 1. COMMISSIONER: The proceedings arise following the Council's deemed refusal of an application under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) for the deletion of conditions 68 (c), 68 (d) and 114 (c) of development consent (DA 2016/165) which approved a five-storey mixed-use development on land in Robey Street, Mascot (original consent). 2. The development site is cleared and the approved mixed use development is currently under construction. The conditions at issue relate to undergrounding of services and public domain works at the frontage of Robey Street and around the site. They are set out below: 1. Condition 68 provides: "68. To ensure that utility authorities and Council are advised of any effects to their infrastructure by the development, the applicant shall: a) Carry out a survey of all utility and Council services within the site including relevant information from utility authorities and excavation if necessary to determine the position and level of services; b) Negotiate with the utility authorities (e.g. Ausgrid, Sydney Water, Telecommunications Carriers and Council in connection with: (a) The additional load on the system;and (b) The relocation and/or adjustment of the services affected by the construction; c) All above ground utilities shall be relocated underground in accordance with Ausgrid and any other affected and relevant service provider; and d) All underground and above ground infrastructure shall be constructed as specified by Ausgrid, RMS, Council and any other affected service provider. The location of the new electrical pillars, new lighting poles, any new pits and trenches for utilities shall be confirmed with Council prior to the issue of the Construction Certificate. Any costs in the relocation, adjustment, and provision of land or support of services as requested by the service authorities and Council are to be the responsibility of the developer." 1. Condition 114(c) provides: "114. Prior to the issue of any Occupation Certificate, the applicant shall carry out the following works: a) On Robey Street, adjacent to development, reconstruct existing kerb and gutter for the full length of the property in accordance with Council Infrastructure Specifications. Location of kerb & gutter to be confirmed with Council prior to construction; b) On Robey Street and Elizabeth Avenue St, adjacent to development, demolish existing concrete footpath and construct new paved footpath as per Council's Infrastructure and Landscape Architect specifications; c) On Robey Street, adjacent to development, construct new stormwater pipe underneath and adjacent to the new kerb & gutter location and repair (where required), at the applicants expense, Council's Stormwater Drainage Infrastructure as per Council's Infrastructure specifications; d) On Elizabeth Avenue, adjacent to development, construct kerb and gutter, drainage pits and pipes to be confirmed in accordance with Council Infrastructure Specifications. Location of kerb & gutter to be confirmed with Council prior to construction; e) Reconstruct the blind end of Elizabeth Avenue where the road pavement is more damaged as per civil engineering design and in accordance with Council Infrastructure specifications and with the written approval by Council. The road pavement shall be designed for construction vehicle traffic and certified by a suitably qualified pavement engineer. The Robey Street public footpath shall be constructed in accordance with Council specifications. The footpath dimensions, location, paver type and construction methods shall be in accordance with this specification only. Pavers shall be ordered accounting for adequate lead time for manufacture. Construction hold points and Council inspections are required at the following points: (i) After formwork installation and to prior pouring the concrete blinding slab (ii) At the commencement of paving works, and (iii) At final completion. Council approval of public domain works is required prior issue of Occupation Certificate. Elizabeth Avenue footpath to be constructed to Council standard. This footpath should be accessible and be minimum width of 700mm." 1. The application also includes the insertion of a new condition 149 in the following terms: "149. Prior to the issue of any Occupation Certificate in relation to the fourth and fifth storeys of the development, the applicant is to undertake public domain works at the eastern portion of John Curtin Reserve to accommodate pedestrian access from 19-25 Robey Street, to the satisfactory inspection by Council's Director City Futures. Such works are to be undertaken at the applicant's expense, to a maximum of $20,000 in cost and in accordance with the Linkage Walkway Landscape Improvement Plan (extracted below), including: (a) Removal of the existing Hibiscus tiliaceus (Cottonwoods). These trees to be removed will be marked with a yellow dot by Council's Tree Management Officer prior to any works on the reserve being undertaken. (b) Retain and protect the existing Casuarina spp (16 meters high) in accordance with a design proposed by an AQF level 5 arborist and such works carried out under their supervision. The pathway shall be 1.5 metres or more from the base of this tree. Council's Tree Management Officer must be onsite at the time of excavation to ensure the required tree protection zone is provided. (c) Construct a minimum 1.2 metre wide all weather pathway connecting from 19-25 Robey Street to the existing concrete pathway within the reserve. Prior to works commencing, a Survey of the area where works are to be undertaken is to be provided to Council to confirm the existing levels. An amended Public Domain Works Plan and schedule of materials and finishes is to be provided to Council for review and the written approval of Council obtained, to ensure pathway specifications and levels are satisfactory and materials are appropriate. Council must provide its written response to this plan and schedule of materials and finishes (by way of approval, approval with amendments or notification of amendments required to the Plan and schedule of materials and finishes) within 14 days of receipt of the plan and schedule of materials and finishes otherwise the applicant will proceed with the works as per the amended Public Domain Plan. (Added BDA-2016/165/A) 1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 November 2019. I 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 them. This decision involved the Court upholding the appeal and granting consent to the deletion of the identified conditions and the insertion of alternate conditions. 3. 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. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the conditions of consent. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be s 4.55(1A)(a), (b) and (c) and (d) of the EPA Act. They also explained how these jurisdictional prerequisites have been satisfied and on the basis of that agreed evidence, I am also satisfied that the jurisdictional prerequisites have been addressed in this case. 4. Accordingly, 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. 5. The Court orders: 1. The appeal is upheld. 2. Modification Application No. BDA-2016/165/A to modify the development consent to DA2016/165 granted by the Respondent on 17 May 2018 is determined by approving the modification as set out at Annexure "A". 3. As a consequence of (2) above, Development Consent 2016/165 is now subject to the consolidated modified conditions of development consent set out in Annexure "B".