Freecity Rockdale Development Pty Ltd v Bayside Council

Catchwords: DEVELOPMENT APPLICATION — demolition of existing structures and construction of a mixed use development — conciliation conference — amended plans and materials — agreement between the parties — orders made

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 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, 6.1, 6.2, 6.3, 6.7, 6.8, 6.10
Environmental Planning and Assessment Regulation 2021, ss 23, 38
State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 3, ss 67, 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Bayside Development Control Plan 2022

Category: Principal judgment

Parties: Freecity Rockdale Development Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
J Ede (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/78809

Publication restriction: No

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-2024/11. The development application, as amended, seeks consent for the demolition of the existing structures and construction of an eight-storey mixed use development comprising a commercial space and 117 room co-living building for student accommodation with basement parking and site works. The development is proposed at 23-25 Frederick Street, Rockdale (Lot 103 in DP 771761).

2. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 which was held 10 September 2024. No agreement was reached at the conciliation, and it was ultimately terminated on 3 December 2025 and the proceedings were listed for hearing. Notwithstanding the termination of the conciliation the parties continued negotiations and ultimately reached agreement on the terms of the resolution of the proceedings. That agreement is for the grant of the application, as amended, subject to conditions. The parties requested a further conciliation conference which was listed before me on 4 July 2025.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

4. The development application was lodged with the consent of the owners of the land. The Applicant in these proceedings is now the registered proprietor of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified publicly from 22 January to 6 February 2024. One objection was received in relation to the development application. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

6. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Based on the Detailed Site Investigation report dated 6 September 2024 and the Remedial Action Plan which accompanies the development application confirms that the site can be made suitable for the development. Clause 4.6 of SEPP RH is satisfied.

7. The site of the proposed development has frontage to a classified road, being Frederick Street. Vehicular access to the proposed development is to be provided from the secondary street frontage being Walz Lane. The parties agree, and I accept with the assistance of the Transport Assessment and Noise and Vibration Impact Assessment with accompany the development application, that the matters at s 2.119(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) are met as follows:

(a) There is a practical and safe vehicular access to the site via a road other than the classified road: s 2.119(2) of SEPP TI; (b) The safety, efficiency and ongoing operation of Frederick Street will not be adversely affected by the development as a result of:

(i) The design of the vehicular access to the site given access is provided via a road other than the classified road: s 2.119(2)()b)(i) of SEPP TI; (ii) The emission of smoke or dust from the development as these are not likely impacts associated with the development: s 2.119(2)(b)(ii) of SEPP TI; (iii) The nature, volume or frequency of vehicles using the classified road to access the land will not be excessive: s 2.119(2)(b)(iii) of SEPP TI; and

(c) The development includes measures, to ameliorate potential traffic noise and vehicle emissions arising from the adjacent classified road, as outlined in the Noise and Vibration Impact assessment that accompanies the development application. Further, the Noise and Vibration Impact assessment confirms that the development application will not be adversely affected by the impact of road noise or vibration.

5. The development application is made pursuant to Ch 3 Pt 3 “Co Living Housing” of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Section 67 of SEPP Housing permits development for the purposes of “co-living housing” where “shop-top housing” is permitted under another environmental planning instrument. “Shop top housing” is a use permitted with consent in the E1 Local Centre zone under the Bayside Local Environmental Plan 2021 (LEP 2021).
6. Section 68 of SEPP Housing has a number of relevant ‘non-discretionary’ development standards. Relevant to the development application:

(a) Pursuant to s 68(2)(a) of SEPP Housing there is no maximum floor space ratio in LEP 2021. (b) Section 68(2)(b) does not apply as the development proposes more than six rooms. (c) Pursuant to s 68(2)(c), 252m2 of communal living area is required to be provided. The development application proposes to provide 117m2 at ground level and 135m2 provided at Level 7. All communal areas comply with the minimum three metre width. (d) Pursuant to s 68(2)(d), 191.1m2 of communal open space is required to be provided. The development application proposes to provide 187.5m2 at ground level and 80m2 provided at Level 7. (e) The development application proposes a variation to the car parking requirements of s 68(2)(e)(i). The site is located in an accessible area and given the proposed 117 room the development would require the provision of a total of 24 parking spaces. A total of seven parking spaces are proposed, comprising five standard parking spaces, one electric car share vehicle space, and an accessible space. A variation to this development standard is proposed pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (LEP 2021) which is considered at [3(12)]. (f) Controls at s 68(2)(f)–(g) are not applicable to the current development application.

7. Section 69(1) details mandatory standards for co living housing which must be satisfied prior to the issue of consent. In relation to those standards, I am satisfied:

(a) All single rooms achieve the minimum 12m2 standard and the adaptable rooms achieve the 16m2 standard, (b) The site meets the minimum 800m2 standard having an area of 955.5m2. (c) Section 69(1)(c) of SEPP Housing is not applicable as the site is located in the E1 Local Centre zone under LEP 2021. (d) The appropriate workspace for the manager of the co-living development is provided as an office on the ground floor. (e) As required by s 69(1)(e) no part of the ground floor fronting the street of the proposed development is proposed to be residential. The ground floor use is commercial, being a café. (f) Each room proposes bathroom, laundry and kitchen facilities for the use of each occupant. (g) Consistent with s 69(1)(g) the Plan of Management approved in the annexed conditions restricts each private room to two occupants. (h) The proposed development contains 117 bicycle parking spaces and four motorcycle spaces with the parties agree, and I accept are adequate.

8. Section 69(2) details mandatory considerations that must be considered by the consent authority prior to consent. In relation to those I find:

(a) Section 69(2)(a) is not applicable as the Site is located in the E1 Local Centre zone under the LEP 2021. (b) the variation to the minimum building separation distance in the Apartment Design Guide is adequate: s 69(2)(b). (c) the Level 7 communal living area is north facing and will achieve all day solar access: s 69(2)(c). (d) the design of the building is compatible with the desired future character of the local area: s 69(2)(f).

9. The Site is located in zone E1 Local Centre under LEP 2021. Shop-top housing is permissible with consent in zone E1 Local Centre. In determining the development application, I have given consideration to the objectives of the zone.
10. Demolition with consent is permitted with consent in the zone pursuant to cl 2.7 of LEP 2021.
11. Clause 4.3 provides for a maximum height for the site of 25m. The proposed development breaches the development standard seeking a maximum height of 26.8m. The development application seeks a variation to the development standard. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by GAT & Associates and in accordance with cl 4.6 of LEP 2021, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the Height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021). I find that the objectives of the Height standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021). In particular, I find that the reasons articulated in written request in relation to the provision of a second communal living space on the upper floor will provide high solar amenity and additional area than is mandated by the controls, is a sufficient ground. I note that this upper floor does not contain any co-living rooms. (c) The states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the Height control.

12. The development application proposes to utilise cl 4.6 of LEP 2021 to vary the development standard for parking at s 68(2) of SEPP Housing. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by GAT & Associates and in accordance with cl 4.6 of LEP 2021, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the construed objectives of the parking standard are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021). I find that the objectives of the standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021). In particular, I find that the combination of the site locations immediate proximity to Kogarah Railway Station, the evidence of a reduced car demand for the proposed residential type proposed, and the reduction of car demand proposed by the provision of alternative transport options are sufficient environmental planning grounds. (c) The states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the Height control.

13. No floor space ratio applies to the site: cl 4.4 of LEP 2021.
14. Pursuant to cl 6.1 Acid Sulfate Soils of LEP 2021 and the acid sulfate soils map the site is classified as Class 5 acid soils land, but is not within 500m of Class 1-4 land. I accept the submission of the parties that no further assessment is required. Further, I accept that an acid sulfate soils management plan is not required.
15. Development consent is required and sought under cl 6.2 of LEP 2021 for the proposed basement excavation earthworks. In relation to clause 6.2(3) criteria, the development application is supported by a Geotechnical Investigation Report prepared by Eswnman. With the assistance of the geotechnical report, I accept the agreed position of the parties that:

(a) The development will not generally disrupt or detrimentally affect drainage patterns or soil stability in the locality in any meaningful way that is attributable to proposed earthworks. (b) The excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment. (c) The quality of soil to be excavated of is de minimis importance and not of determinative weight. Conditions of consent ensure the use of clean fill and disposal of excavated material to an appropriate destination. (d) The proposed excavation will not detrimentally affect existing and likely amenity of adjoining properties when implemented in accordance with the conditions in Annexure A. (e) The likelihood of disturbing relics is low. (f) The site will not have adverse impacts on a waterway, drinking water catchment of environmentally sensitive area. (g) The prospect of any adverse impacts on such areas can be managed by conditions, including the provision and maintenance of sediment and erosion control measures. (h) Sediment and erosion control measures implemented during excavation will mitigate potential impacts stemming from the development.

16. Clause 6.3 of LEP 2021 requires the consent authority to be satisfied that the development addresses the matters listed at sub cl (1). With the assistance of the Stormwater Plans prepared by TTW (NSW) Pty Ltd, I accept the agreed position of the parties that:

(a) water sensitive urban design principles have been incorporated into the design of the development, and (b) riparian, stormwater and flooding measures have been integrated as part of the development, and (c) the stormwater management system includes all reasonable management actions to avoid adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways, receiving waters and groundwater systems, and (d) the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways receiving waters and groundwater systems, and (e) the development is designed to maximise the use of water permeable surfaces on the site having regard to the soil characteristics affecting on-site infiltration of water.

17. The amended development application no longer protrudes into the prescribed airspace, satisfying cl 6.7 “Airspace Operations” in LEP 2021.
18. As the site is located within the 20-25 ANEF contours, cl 6.8 of LEP 2021 applies. The development application is accompanied by a Noise and Vibration Report. On the basis of this report, and the requirement for the development to be implemented in accordance with its recommendations, I find that the requirements of cl 6.8 of LEP 2021 is satisfied.
19. Having considered the matters at cl 6.10(4) I am satisfied that the development application, as amended, exhibits design excellence as required by cl 6.10(3) of LEP 2021 on the following basis:

(a) A high standard of architectural design, materials and detailing has been achieved. The building positioning is responsive to the site-specific Bayside Development Control Plan 2022 (DCP 2022) setbacks while the language and materials have taken cues from the locality with the use of brick, inclusion of arches and terracotta colours. (b) The street activation and presentation to Frederick Street and Walz Lane will be significantly enhanced by the development with the inclusion of trees in the “Green Gateway” and a high level of glazing. The rear interface with Frederick Lane incorporates plantings and will be enhanced through the conditions of consent to be imposed to relocate the OSD tank and incorporate additional landscaping. (c) The built form has been shaped to allow for view corridors between the site and adjoining properties compatible with the vision of development on the site under DCP 2022. (d) The development is largely consistent with the DCP 2022 and, where varying the number of storeys control, has met the desired outcomes of the planning controls. (e) In relation to the matters listed at cl 6.10(4)(e) I am satisfied that:

(i) The site is suitable for the development in view of the satisfactory resolution to contamination issues under SEPP RH and other key criteria such as stormwater management, landscaping, acoustic and parking under LEP 2021 and DCP 2022. (ii) The proposed student accommodation and café are compatible uses permissible with consent in the zone. (iii) There are no heritage considerations, and the built form has been appropriately shaped to address streetscape issues, including landscape at the street level in the public domain. (iv) The proposed setbacks and building separation are compliant and, where varying, acceptable through appropriate building massing and articulation and privacy treatments. (v) The bulk and massing align with the site-specific DCP 2022 outcomes of a podium and tower design with an increasing setback from the western neighbouring property. (vi) The seven-storey street frontage height exceeds the DCP 2022 by a storey. It is acceptable through the satisfactory design including the extensive street setback of Level 7 and the assessment of the variation under cl 4.6 of LEP 2021. (vii) Environmental issues such as reflectivity will be addressed by condition of consent. There are sustainable outcomes provided within the scheme such as water management, photovoltaic panels and an electric car share vehicle. Overshadowing is appropriately addressed to the neighbouring properties. (viii) The principles of ecological sustainable development have been achieved as detailed above. (ix) The access arrangements have been deemed acceptable. Appropriate pedestrian access is provided to the building. Adequate car and bicycle parking has been provided. (x) The public domain will be improved through new landscaping and paving to suit Council’s requirements. (xi) The built form addresses the street frontage and provides an active street frontage. (xii) The landscape design aligns with Council’s Green Gateway outcomes as identified within the DCP 2022 and as conditioned.

(f) In determining the development application I have given consideration to the minutes of the Design Review Panels consideration of the development application.

20. DCP 2022 applies to the site. The Statement of Environmental Effects filed with the development application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.

21. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to, “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

22. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

23. The Court notes that:

24. The Respondent, Bayside Council, as the relevant consent authority for the purposes of s.38(1) of the Environmental Planning and Assessment Regulation 2021, approves the amendment to Development Application DA-2024/11 to rely on the following plans and documents:

A-0100 – Cover Sheet – Drawing Index (Rev 7) dated 28 March 2025

A-1100 – Site Plan (Rev 6) dated 28 March 2025

A-1102 – Site Analysis Plan (Rev 6) dated 28 March 2025

A-1103 – Demolition Plan (Rev 5) dated 28 March 2025

A-2099 – Basement 1 Plan (Rev 11) dated 28 March 2025

A-2100 – Ground Floor Plan (Rev 13) dated 28 March 2025

A-2101 – Level 1 Plan (Rev 9) dated 28 March 2025

A-2102 – Level 2 (Rev 8) dated 28 March 2025

A-2103 – Level 3 Plan (Rev 8) dated 28 March 2025

A-2104 – Level 4 Plan (Rev 10) dated 28 March 2025

A-2105 – Level 5 Plan (Rev 8) dated 28 March 2025

A-2106 – Level 6 Plan (Rev 8) dated 28 March 2025

A-2107 – Level 7 Plan (Rev 11) dated 28 March 2025

A-2108 – Roof Plan (Rev 10) dated 28 March 2025

A-2200 – Typical Unit Layout (Rev 2) dated 28 March 2025

A-3000 – Elevations (Rev 8) dated 28 March 2025

A-4000 – Sections (Rev 9) dated 28 March 2025

A-4001 – Basement Ramp Section (Rev 7) dated 28 March 2025

A-5001 – Unit Detail Sections (Rev 2) dated 28 March 2025

A-8001 – Shadow Diagrams – Winter Solstice (Rev 6) dated 28 March 2025

A-8002 – Shadow Diagrams – Equinox (Rev 5) dated 28 March 2025

A-8003 – Neighbouring Property Shadow – Winter Solstice (Rev 5) dated 28 March 2025

A-8004 – Neighbouring Property Shadow – Equinox (Rev 5) dated 28 March 2025

A-8005 – Neighbouring Property – Proof of Concept Plan (Rev 4) dated 28 March 2025

A-8006 – Neighbouring Property – Proof of Concept Sections (Rev 4) dated 28 March 2025

A-9000 – Development Calculations (GFA) (Rev 3) dated 28 March 2025

ASK-2116 – OSD Tank – Plans (Rev 6) dated 28 March 2025

ASK-2117 – OSD Tank – Sections (Rev 6) dated 28 March 2025

ASK-2118 - Northern Soil Vault (Rev 1) dated 28 March 2025

Landscape Plans (Rev G) prepared by Arcadia Sydney dated 28 February 2025.

Civil Works Plans prepared by TTW (NSW) Pty Ltd:

C00 Cover Sheet, Locality Plan and Drawing Schedule (Rev P4) dated 28 February 2025

C01 General Notes and Legends (Rev P4) dated 28 February 2025

C02 Sediment and Erosion Control Plan and Details (Rev P4) dated 28 February 2025

C10 Siteworks & Stormwater Management Plan (Rev P6) dated 28 February 2025

C11 Catchment Plan (Rev P5) dated 28 February 2025

C20 Typical Details, Sheet 1 (Rev P7) dated 28 February 2025

C21 Typical Details, Sheet 2 (Rev P5) dated 28 February 2025

C22 Typical Details, Sheet 3 (Rev P4) dated 28 February 2025

C23 Typical Details, Sheet 4 (Rev P4) dated 28 February 2025

C24 Typical Details, Sheet 5 (Rev P3) dated 28 February 2025

DA Civil Engineering Report (Rev 4) prepared TTW (NSW) Pty Ltd dated 17 January 2025.

Construction Methodology prepared by Lexpol Group Pty Ltd dated 23 October 2024.

Transport Assessment (Rev C) prepared by JMT Consulting dated 17 October 2024.

Flooring Acoustic Separation Report prepared by E-LAB Consulting dated 23 October 2024.

Detailed Site Investigation prepared By Martens dated 6 September 2024.

Remedial Action Plan prepared by Martens dated 12 August 2024.

Plan of Management (Rev 3) prepared by UniLodge dated August 2024.

Clause 4.6 written request seeking to vary height of buildings development standard prepared by GAT & Associates dated October 2024.

Clause 4.6 written request seeking to vary car parking development standard prepared by GAT & Associates dated April 2025.

(referred to as “the Amended Application”)

2. The Applicant's written request under cl 4.6 of the Bayside Local Environmental Plan 2021, seeking to vary the height of buildings development standard under cl 4.3, is upheld.

3. The Applicant's written request under cl 4.6 of the Bayside Local Environmental Plan 2021, seeking to vary the car parking development standard under 68(2) of State Environmental Planning Policy (Housing) 2021, is upheld.

4. The Court orders that:

5. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA-2024/11 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of ($20,000) within 28 days of the date of these orders.

6. The appeal is upheld.

7. Development Application DA-2024/11, as amended, for the demolition of the existing structures and construction of an eight storey mixed use development comprising a commercial space and 117 room co-living building for student accommodation with basement car parking, landscaping, and site works at Lot 103 DP 771761, also known as 23-25 Frederick Street, Rockdale is determined by the grant of consent subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

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Annexure A (681 KB, pdf)