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[2025] NSWLEC 1219
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-08
Pullinger AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Big Bocconcini Ball Pty Ltd v The Council of the City of Sydney [2025] NSWLEC 1219
Hearing dates: Conciliation conference on 10 March and 27 March 2025
Date of orders: 08 April 2025
Decision date: 08 April 2025
Jurisdiction: Class 1
Before: Pullinger AC
Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Modification Application D2019/1488/D and rely on the amended plans and documents listed at Condition 1 of Annexure A.
(2) Modification Application D2019/1488/D (as amended), for the expansion and reconfiguration of level 4 and the roof of the approved building at 552-554 Botany Road, Alexandria NSW, is determined by way of approval.
(3) Development Consent D2019/1488 is modified subject to the conditions of consent set out at Annexure A.
(4) Development Consent D2019/1488 (as modified by the Court) is subject to the consolidated conditions of consent set out at Annexure B.
Catchwords: MODIFICATION APPLICATION – alterations and additions – commercial building – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 98, 113
Sydney Local Environmental Plan 2012, cll 4.4, 6.21C
Cases Cited: Big Bocconcini Ball Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1449
Category: Principal judgment
Parties: Big Bocconcini Ball Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)
Representation: Counsel:
B Salon (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
The Council of the City of Sydney (Respondent)
File Number(s): 2024/453999
Publication restriction: Nil
COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application D2019/1488/D (the MA) made directly to the Court by Big Bocconcini Ball Pty Ltd (the Applicant). In these circumstances, The Council of the City of Sydney (the Respondent) is required to exercise certain functions of the relevant consent authority.
The MA seeks to further modify Development Consent D2019/1488 (the parent DA), which comprises the demolition of existing structures and construction of a five storey commercial building with ground floor retail and car parking at 552-554 Botany Road, Alexandria NSW (the site).
Consent for the parent DA was granted by the Court on 6 August 2021 in proceedings Big Bocconcini Ball Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1449.
The parent DA has been previously modified by the Respondent (D/2019/1488/A) on 2 August 2022 to update the Remedial Action Plan.
The subject MA was lodged with the Court on 6 December 2024 and sought approval to modify the parent DA for:
Expansion of the office floor area from 158.3sqm to 414.3sqm at level 4.
Reconfiguration of the central terrace at level 4.
Relocation of male, female and accessible bathrooms at level 4.
Provision of additional fire stairs on the south-western corner at level 4.
Removal of elliptical void in eastern terrace and the related expansion of the terrace at level 4.
Extension of the roof over the expanded commercial floor space.
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 March and 27 March 2025. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting approval to an amended MA, subject to conditions.
Of note, the MA has been amended during the conciliation conference to resolve the contentions originally pressed by the Respondent, which included concerns for visual and acoustic privacy for neighbouring residential properties, potential overshadowing impacts on neighbouring properties, inadequate building separation, and floor space exceedance, amongst other contentions.
The design amendments include reducing the extent of the additions proposed at level 4 to increase building separation, reducing opportunities for cross viewing, and mitigating against overshadowing impacts offsite. An extent of non-accessible vegetated roof is proposed at level 4 at the rear site boundary. Collectively, these amendments are agreed to resolve the issues in this matter.
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 existing DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The parties agree, and I am satisfied, that the MA was notified between for 14 days from 7 February to 22 February 2025 to properties within a 25m radius of the site, and including to those people who made submissions in response to the parent DA.
The Respondent received one submission raising concerns for floor space ratio (FSR) exceedance, the loss of the level 4 green roof, diminished amenity for neighbouring residential uses, and questioning whether the MA is substantially the same as the parent DA.
The parties agree, and I am satisfied, that the amended MA addresses the concerns raised by the objector, primarily by setting back the level 4 additions from the rear site boundary, reducing opportunities for cross viewing, the associated improved building separation, and the introduction of rooftop planting. Accordingly, and pursuant to s 4.55(2)(c) and (d) of the EP&A Act, I am satisfied the MA has been appropriately publicly notified and that submissions received have been appropriately considered.
Pursuant to s 4.55(2)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended MA remains substantially the same as the parent DA. The amended MA proposes alterations and additions that are minor in nature, the approved use remains as a commercial building with ground floor retail, the building entry and ground floor interface remain as approved, and the setbacks to the primary street, maximum building height and height in storeys remain as originally approved.
The parties agree, and I am satisfied, that the Sydney Local Environmental Plan 2012 (SLEP) is the relevant local environmental planning instrument.
I am satisfied that pursuant to cl 4.4 - FSR - of the SLEP Environmental Plan, although the MA results in additional floor space beyond the relevant FSR development standard, there is no jurisdictional barrier to the granting of approval to the amended MA.
Further, the parties agree, and I am satisfied, that the FSR exceedance proposed by the amended MA is justified because the objectives of cl 4.4 of the SLEP are achieved notwithstanding exceedance, and that there are minimal and acceptable impacts.
The parties agree, and I am satisfied, that the amended MA exhibits the design excellence pursuant to cl 6.21C of the SLEP because the amended MA is of an acceptable scale and form, which has satisfactorily mitigated against environmental impacts such as solar access and visual privacy. Accordingly, there is no jurisdictional barrier to the granting of approval to the amended MA.
Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent.
The Applicant has lodged the amended MA with the Court on 27 March 2025.
The Court orders that:
Leave is granted to the Applicant to amend Modification Application D2019/1488/D and rely on the amended plans and documents listed at Condition 1 of Annexure A.
Modification Application D2019/1488/D (as amended), for the expansion and reconfiguration of level 4 and the roof of the approved building at 552-554 Botany Road, Alexandria NSW, is determined by way of approval.
Development Consent D2019/1488 is modified subject to the conditions of consent set out at Annexure A.
Development Consent D2019/1488 (as modified by the Court) is subject to the consolidated conditions of consent set out at Annexure B.
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Removed underlining.
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), revised Annexure A, B and drawings have been provided to replace existing Annexures and plans.
Big Bocconcini Ball Pty Ltd
The Council of the City of Sydney [2025] NSWLEC 1219