64-68 BLS Pty Ltd v Bayside Council [2024] NSWLEC 1686

Catchwords: DEVELOPMENT APPEAL – modification application – justification of contravention of height of building development standard – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 64-68 BLS Pty Ltd v Bayside Council [2024] NSWLEC 1686 Hearing dates: Conciliation Conference on 12 and 23 September, 8 and 18 October 2024 Date of orders: 29 October 2024 Decision date: 29 October 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 , the Applicant is to pay the Respondent’s costs thrown away in the agreed sum of $15,000 within 28 days of the date of these orders. (2) The appeal is upheld. (3) Development Application No. DA 2024/114 for alterations, additions and amendments to the originally approved mixed use development, being Development Consent DA 2020/241 (as modified), including changes to the distribution of floor space and layout of dwellings and rooftop communal open space at Levels 10 and 11 of 64-68 The Grand Parade, Brighton Le Sands, is approved, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPEAL – modification application – justification of contravention of height of building development standard – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s s 4.16 , 4.17, 8.7, 8.15 Land and Environment Court Act 1979 , s 34 Bayside Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 4.6, 5.10, 6.7, 6.10 Civil Aviation (Buildings Control) Regulations 1988 State Environmental Planning Policy (Housing) 2021, s 147, Ch 4 Environmental Planning and Assessment Regulation 2021, ss 38, 67 Cases Cited: Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270 Wehbe v Pittwater Council (2007) 156 LGERA 446 ; [2007] NSWLEC 827 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, 2015 Category: Principal judgment Parties: 64-68 Pty Ltd ABN 38 640 961 431 (Applicant) Bayside Council (Respondent) Representation: Counsel: M Staunton (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Sattler & Associated Pty Ltd(Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2024/256989 Publication restriction: No Judgment COMMISSIONER : This is a Class 1 Development Appeal pursuant to s 8 . 7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No. DA-2024/114 for alterations, additions and amendments to the originally approved mixed use development, being Development Consent DA 2020/241 (as modified), including changes to the distribution of floor space and layout of dwellings and rooftop communal open space at Levels 10 and 11 (the Proposed Development) at 64-68 The Grand Parade, Brighton Le Sands legally described as Lot 50 in DP 1277906 (the Site). The Proposed Development will essentially modify the existing consent DA-2020/241, as subsequently modified by modification applications numbers MDA 2022/100 and MDA 2022/101 (Existing Consent). The modification of the Existing Consent will be pursuant to s 4.17(1)(b) of the EPA Act and s 67 of the Environmental Planning and Assessment Regulation 2021. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 12 and 23 September 2024, 8 and 18 October 2024 . I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. The parties agree that all Contentions raised in the Statement of Facts and Contentions filed on 27 August 2024 ( SOFAC ) have been resolved by the preparation of the: amended plans and documents referred to in the Notations below; and agreed conditions of consent 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The parties ’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP) to vary a development standard , and the relevant terms of the S tate Environmental Planning Policy (Housing) 2021 (Housing SEPP) . The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement. The Land is zoned MU1 Mixed Use Development under BLEP. Development for the purpose of a mixed use development is permissible in the MU1 zone. Demolition is permissible with consent pursuant to cl 2.7 of the BLEP. The Site is subject to a maximum height of building (HOB) development standard of 36m pursuant to cl 4.3 of the BLEP . The Proposed D evelopment contravenes the height standard by 2. 9 m however it remains at the same height of the E xisting Consent (45.8m AHD) . The Applicant relies on a written request pursuant to cl 4.6 of BLEP prepared by Planning Ingenuity dated 21 October 2024 to justify the contravention of the HOB development standard (Written Request) . The Written Request relies on the summary of Preston CJ ’ s consideration of assessing the merits in the context of the development consent that has already been granted in Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270 by Peatman AC at [74] as follows: “In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780, Preston CJ considered the scope of assessment of an application for development consent which, in substance, had the effect of seeking to carry out development under an existing consent in a different manner. The applicant sought to limit the Court’s inquiry only to the impacts of the alterations and additions proposed in the subject consent. The Council submitted that the analysis should extend to the whole of the resultant development (at [9]-[10]). The Council’s contentions sought to evaluate the development resulting from both the existing and sought consents considered together (at [21]). His Honour held that the Council’s approach was the correct one – that the various aspects of the whole resultant development had to be taken into account. One could not divorce looking at the new aspects of the development from the broader contextual inquiry and the rest of the building (see in particulars [23]-[25]).” The Written Request establishes that compliance with the HOB development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a), BLEP) because the objectives of the standard are achieved for the reasons set out at pp 8 to 12: Wehbe v Pittwater Council (2007) 156 LGERA 446 ; [2007] NSWLEC 827 at [42]. The Written Request sets out sufficient environmental planning grounds to justify the proposed (existing) contravention at pp 13 to 16 which are unique circumstances to the Proposed Development, particularly given the proposal does not increase the approved height variation for the Site. The Written Request, at p 16, states: “The variation to the height limit is numerically minor and any additional floor space above the height limit does not materially impact the amenity of surrounding properties or the public domain . The proposed development will continue to provide a transition in built form and provide a scale that sits in harmony with surrounding development and the public domain.” The Court is satisfied that the applicant ’ s Written Request seeking to justify the contravention of the development standard in cl 4.3 of the BLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the BLEP . With respect to c l 6.10 Design Excellence of the BLEP, the parties have taken into account the minutes of the Design Review Panel (dated 4 July 2024) as required by cl 6.10(5) of the BLEP and are agreed that the Proposed Development as originally before the Court did not achieve design excellence. However, following good faith discussions at the conciliation conference , the parties are no w agreed that the Proposed Development, as reflected in the Final Amendment, on balance , does achieve design excellence for the purposes of cl 6.10 of the BLEP . The increased communal open space on the eastern side of the building (as compared to what was originally proposed in th e application), amended layout of level 11 and associated division of communal open space and the private balcony area of unit 1101, achieved via good faith discussions between the parties, is accepted as the limit of the appropriate division of communal open space and private open space whilst still retaining design excellence . The Court also acknowledges that it is also accepted by the parties that any further reduction or erosion of communal open space on level 11 from what is approved by this determination would not achieve design excellence pursuant to cl 6.10 of the BLEP and would not be in the public interest. With respect to cl 6.7 of the BLEP, the Land is located within an area defined in schedules of the Civil Aviation (Buildings Control) Regulations 1988 which limit the height of structures t o 15.24 metres above existing ground height (AEGH) without prior approval of the Civil Aviation Safety Authority. The Proposed Development (as reflected in the Final Amendment) has a maximum height of 45.8 Australian Height Datum (AHD). The height of the Proposed Development is the same as the development approved under the Existing Consent , namely 45.8m AHD. Sydney Airports Corporation Limited (SACL) advised that they did not object to the erection of a development on site to a maximum height of 45.8m AHD. SACL's correspondence dated 11 August 2020 accompanie d th e j urisdictional s tatement prepared by the parties . SACL's requirement that the building not be higher than 45.8m AHD is reflected in condition 137 of the Existing Consent which remains unchanged and continues to apply pursuant to the Notice of Modification (see conditions 1 and 6 of Annexure A ). Accordingly, in circumstances where the height of the P roposed Development does not change, and remains at 45.8m AHD, the parties are satisfied that the Proposed Development is acceptable under cl 6.7 of the BLEP. T he Proposed Development as reflected in the Final Amendment does not give rise to a breach of the floor space ratio development standard (cl 4.4, BLEP) . For completeness , the parties note that the Site does contain heritage listed terraces fronting the Grand Parade and thus cl 5.10 of the BLEP applies. However, due to the nature of the Proposed Development , there is no impact upon the heritage terraces and thus the Proposed Development is satisfactory pursuant to cl 5.10 of the BLEP. The parties are satisfied that the P roposed Development, as reflected in the Final Amendment, is satisfactory having regard to Ch 4 of the Housing SEPP , in particular s 147 of the Housing SEPP , and the Apartment Design Guide. Council did not receive any submis s ions following advertis ing and notifi cation to adjoining and nearby landowners in accordance with Council’s notification policy from 29 May 2024 to 13 June 2024. I am satisfied that the parties ’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of th e LEC Act. I adopt the reasons given by the parties as set out in this judgment. 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. Notations The Court notes: Bayside Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning & Assessment Regulation 2021 , to the Applicant amending Development Application DA 2024/114 to rely upon the following amended plans and documents (Amended Application): The following amended architectural plans prepared by Dickson Rothschild: Drawing No. Drawing Title Revision No. Date A01 DOCUMENT LIST+LEGEND B 03/10/2024 A02 GA PLAN - BASEMENT 03 A 19/12/2023 A03 GA PLAN - BASEMENT 02 A 19/12/2023 A04 GA PLAN - BASEMENT 01 A 19/12/2023 A05 GA PLAN - GROUND FLOOR B 03/10/2024 A06 GA PLAN - LEVEL 01 A 19/12/2023 A07 GA PLAN - LEVEL 02 A 19/12/2023 A08 GA PLAN - LEVEL 03 A 19/12/2023 A09 GA PLAN - LEVEL 04 A 19/12/2023 A10 GA PLAN - LEVEL 05 A 19/12/2023 A11 GA PLAN - LEVEL 06 A 19/12/2023 A12 GA PLAN - LEVEL 07 A 19/12/2023 A13 GA PLAN - LEVEL 08 A 19/12/2023 A14 GA PLAN - LEVEL 09 A 19/12/2023 A15 GA PLAN - LEVEL 10 B 03/10/2024 A16 GA PLAN - LEVEL 11 B 03/10/2024 A17 GA PLAN - ROOF B 03/10/2024 A18 EXTERNAL ELEVATIONS - NORTH ELEVATION B 03/10/2024 A19 EXTERNAL ELEVATIONS - SOUTH ELEVATION B 03/10/2024 A20 EXTERNAL ELEVATIONS - EAST ELEVATION B 03/10/2024 A21 EXTERNAL ELEVATIONS - WEST ELEVATION B 03/10/2024 A22 EXTERNAL ELEVATIONS - INNER EAST ELEVATION B 03/10/2024 A23 EXTERNAL ELEVATIONS - INNER WEST ELEVATION A 19/12/2023 A24 BUILDING SECTION - SECTION AA B 03/10/2024 A25 BUILDING SECTION - SECTION BB B 03/10/2024 A26 GFA DIAGRAMS 01 of 02 A 19/12/2023 A27 GFA DIAGRAMS 02 of 02 B 03/10/2024 A28 SOLAR ACCESS DIAGRAMS B 03/10/2024 A29 VIEWS FROM THE SUN - JUNE 21 B 03/10/2024 A30 SHADOW DIAGRAMS - JUNE 22 - 9:00 AM A 19/12/2023 A31 SHADOW DIAGRAMS - JUNE 22 - 12:00 PM A 19/12/2023 A32 SHADOW DIAGRAMS - JUNE 22 - 03:00 PM A 19/12/2023 A33 COMPARATIVE STUDY IV - SHADOW IMPACT A 19/12/2023 A34 COMPARATIVE STUDY IV - SHADOW IMPACT A 19/12/2023 A35 COMPARATIVE STUDY - NEIGHBOURING VIEWS A 19/12/2023 A36 COMMUNAL SPACE SHADOWS B 03/10/2024 The following landscape plans prepared by Vision Dynamics Pty Ltd: Drawing No. Drawing Title Revision No. Date 21889 CC 1 - 5 LANDSCAPE PLAN H 20/09/2024 21889 CC 2 - 5 LANDSCAPE PLAN H 20/09/2024 21889 CC 3 - 5 LANDSCAPE PLAN H 20/09/2024 21889 CC 4 - 5 LANDSCAPE PLAN H 20/09/2024 21889 LEC 1 LANDSCAPE PLAN B 03/10/2024 The Applicant's written request pursuant to cl 4.6 of BLEP seeking a variation of cl 4.3 - Height of Buildings of BLEP prepared by Planning Ingenuity , dated 21 October 2024 . BASIX Certificate No. 997519M_07 prepared by Building & Energy Consultants Australia dated 16 October 2024. Design Verification Statement prepared by Robert Nigel Dickson dated 17 October 2024 . Orders The Court orders: Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 , the Applicant is to pay the Respondent ’ s costs thrown away in the agreed sum of $15,000 within 28 days of the date of these orders. The appeal is upheld. Development Application No. DA 2024/114 for alterations, additions and amendments to the originally approved mixed use development, being Development Consent DA 2020/241 (as modified), including changes to the distribution of floor space and layout of dwellings and rooftop communal open space at Levels 10 and 11 of 64-68 The Grand Parade, Brighton Le Sands , is approved , subject to the conditions in Annexure A. E Espinosa Commissioner of the Court ********** Annexure A Amended Plans 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 October 2024