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 deemed refusal of development application DA-2022-403 for the demolition of existing structures and construction of a 10-storey commercial building above 3 levels of basement parking and associated landscaping (the Proposed Development) at 413-425 Princes Highway, Rockdale, legally described as Lots 1-8 in DP 11344 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, presided over by Acting Commissioner Washington, which was held on 13 and 19 December and terminated on 20 December 2023 because the parties were unable to reach agreement. The applicant sought and was granted the leave of the Court to rely on amended plans on 28 June 2024 and the matter was listed for hearing on 16 July 2024 with an on-site view before Commissioner Espinosa and Acting Commissioner Thorpe. The hearing was adjourned, and ultimately vacated, after the parties informed the Court that they had reached agreement based on the amended plans and a Joint Expert Report filed on 11 July 2024. The Court arranged a further conciliation conference under s 34(1) of the LEC Act held on 16 July 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 note that the key changes to the Development Application include the following:
1. Change from a four-storey podium to a three-story podium, with reconfiguration of the podium to increase setbacks;
2. Change from six to seven storeys above the podium, with adjustments to the building layout;
3. Change to the orientation of the lift core;
4. Reconfiguration of car, bicycle and motorcycle parking, including increasing the number of parking spaces to 50; and
5. Addition of a loading zone on the eastern side of Waines Crescent.
The parties have considered the submissions received from members of the public pursuant to s 4.15(1)(d) of the EPA Act. The Development Application was notified from 18 January to 20 February 2023 in accordance with the Rockdale Development Control Plan 2011 (RDCP). The submissions raised concerns regarding impacts on character, privacy, property values, traffic and parking, as well as concerns about glare, vehicle access, setbacks, toilet facilities, light, noise and construction impacts. The parties agree that the amended plans have sought to address the objectors' concerns including the concerns of the one objector registered to speak at the hearing, but was unable to attend on the day due to illness. The parties explain that concerns have been addressed as follows:
1. In relation to glare, the parties include Condition 54 to ensure that adverse reflectivity from the commercial building are minimised.
2. The outdoor area has been lowered to level 3, reduced in scale and reconfigured to increase building separation thus resulting in reducing the impacts to adjoining neighbours.
3. The built form has been reconfigured to increase building separation and improve privacy.
4. Solar access to neighbouring properties has been improved, particularly for adjoining residential balconies, as shown in the shadow diagrams filed on 27 June 2024 a copy of which is reproduced below at Figure 1 and Figure 2.
Figure 1: Shadow Diagrams - June Drawing DA 6001 Rev D
Figure 2: Shadow Diagrams - June Drawing DA 6002 Rev D.
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 and the parties explained how the jurisdictional prerequisites have been satisfied during the conciliation conference.
The Applicant is the owner of the Site.
The Site is located in the B4 Mixed Use zone pursuant to the Bayside Local Environmental Plan 2021 (BLEP) where development for the purpose of Commercial Premises is permitted with consent.
No maximum floor space ratio is identified for the site on the Floor Space Ratio Map referred to in cl 4.4(2) of the BLEP. Pursuant to the Height of Buildings Map referred to in cl 4.3 of the BLEP, there is a maximum heigh of 34m for the site. The Proposed Development complies with this limit, as shown in Figure 3 below.
Figure 3: LEP Height Blanket Drawing DA 7050 Rev D
The Site is identified as being affected by Class 5 acid sulfate soils on the Acid Sulfate Soils Map referred to in cl 6.1 of BLEP. The Contaminated Land Specialist for Bayside Council has confirmed in a memo dated 21 March 2023 that an Acid Sulfate Soil Management Plan is not required for the Proposed Development. This conclusion is informed by the Statement of Environmental Effects dated 12 December 2022 and the Preliminary Site Investigation dated 14 November 2022, both filed in the Class 1 Application on 15 June 2023.
The parties agree that the matters relating to earthworks in cl 6.2 of BLEP have been considered in accordance with that clause.
In relation to stormwater, cl 6.3 of the BLEP provides a jurisdictional prerequisite to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways, receiving waters and groundwater systems. The Proposed Development incorporates water sensitive urban design principles and the design is appropriate to minimise adverse impacts of stormwater in accordance with cl 6.3 of BLEP. To satisfy the terms of cl 6.3(3) of the BLEP, the development includes on-site detention, permeable surfaces are included in the proposed landscaping, and matters such as waterproofing and tanking of the basement are specified in Condition 16.
The Airports (Protection of Airspace) Regulations 1996 apply to the development application because the site is within an area defined in schedules of the Civil Aviation (Buildings Control) Regulations 1988. Sydney Airport Corporation has been notified and has provided approval by letter dated 23 January 2023 for the Proposed Development, being a controlled activity pursuant to s 183 of the Airports Act 1996, reg 15A(2) of the Airports (Protection of Airspace) Regulations 1996, and cl 6.7 of the BLEP. Condition 18A has been included in the Annexure A conditions of consent to ensure compliance with the terms of this approval which provides that there is "no objection to the erection of this development to a maximum height of 49.2 m … The approved height is inclusive of all lift over-runs, vents, chimneys, aerials, TV antennae, construction cranes etc".
The parties explain that cl 6.10 of the BLEP is satisfied because the Proposed Development exhibits design excellence in accordance with each of the matters listed in cl 6.10(4). I have referred to commentary on each of these matters in the report of the Bayside Design Review Panel dated 2 March 2023 filed with the Respondent's Bundle of Documents on 9 July 2024. That commentary noted that several matters were "not yet demonstrated" however, and as a result of the amendments to the Proposed Development, Mr Gerard Turrisi prepared an updated table on 16 July 2024 providing his opinion on how the amended proposal addresses those remaining matters and aligns with the RDCP. Consistent with Mr Turrisi's statement, the parties agree that the Proposed Development, as amended, exhibits design excellence. In accordance with Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117, I adopt Mr Turrisi's reasons to achieve the requisite state of satisfaction that the Proposed Development exhibits design excellence as required by cl 6.10 of the BLEP, and I reproduce these below as follows:
"DESIGN EXCELLENCE ASSESSMENT
PURSUANT TO CL 6.10 OF BAYSIDE LEP 2021
A. Built form creates a base, middle and top to align with the podium and tower controls within the site-specific controls contained within the DCP. The use of brick reinforces the balance of glass, and provides an appropriate raising to the building. Condition 19 requires details of those finishes.
B. Landscape is provided to Princess Highway and to the corners of the built form, including additional public domain areas to the northern corner of the site public out along Waines Crescent.
C. The built form has been shaped to allow view corridors from the public domain, and from surrounding properties given the overlaps created by the upper level overbearing the lower level.
D. The built form complies with the height control and meets relevant green corridor provision under the DCP, as well as the outcomes required for setbacks that have regard to amenity issues such as overshadowing and privacy.
(i) There are no unreasonable impacts created by the proposal, and the built form in terms of finishes is assisted by condition 19, and thus the proposal is deemed suitable.
(ii) Proposed building provides for various commercial uses that are permitted in the zone.
(iii) There are no heritage concerns, and the built form has been appropriately shaped to address streetscape issues, including landscape at the street level/ public domain
(iv) The proposed setbacks and interface with the surrounding properties are deemed acceptable as detailed above.
(v) Bulk and massing aligns with the outcomes of a base, middle and top including provision of stepping through level changes via the overlap of the built form.
(vi) The proposal provides for a podium form to the street for 3 stories to align with Council's DCP.
(vii) Environmental issues such as reflectivity has been advised via condition 54, and there are sustainable outcomes provided within the scheme such as water management of the like. Overshadowing is appropriately addressed to the neighboring properties.
(viii) A section J Report was provided to address sustainability issues.
(ix) Access managements have been deemed to be acceptable. Appropriate pedestrian access to the building is provided including connectivity through the site to Waines Crescent.
(x) Public domain has been improved as detailed above.
(xi) The built form addresses the street frontage and provides active connectivity.
(xii) The landscape design aligns with Council's green gateway outcomes as identified within Council's DCP."
Essential services are available for the proposed development as required by cl 6.11 of the BLEP.
The Proposed Development is integrated development pursuant to s 90 of the Water Management Act 2000 (WA Act) due to the proximity of the proposed basement level to the groundwater table. Water NSW has provided general terms of approval under s 90 of the WA Act, and those terms of approval are incorporated into the Conditions, at Condition 16.
I have considered whether the Site is contaminated pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The Detailed Site Investigation dated 12 December 2023 and the Remediation Action Plan dated 20 December 2023, each filed with the Court as part of Exhibit JE-1 on 27 June 2024, conclude that the Site can be made suitable for the proposed commercial development.
The Site fronts onto the Princes Highway which is a classified road. Although the Proposed Development does not seek consent to do works on the classified road pursuant to s 138 of the Roads Act 1993 (Roads Act), Transport for NSW (TfNSW) has been consulted in accordance with s 138 of the Roads Act as well as pursuant to ss 2.118, 2.119 and 2.122 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). TfNSW provided conditions in its letter dated 12 July 2024 and these are incorporated at Condition 14.
The Proposed Development seeks vehicular access to the Site to be provided from Waines Crescent, and not from the Princes Highway, in accordance with ss 2.118 and 2.119 of the Transport and Infrastructure SEPP. The parties agree, and I accept, that the safety, efficiency and ongoing operation of Princes Highway will not be affected by the Proposed Development, satisfying the terms of s 2.119(b) of the Transport and Infrastructure SEPP. As the Proposed Development is for a commercial development it will not be particularly sensitive to traffic noise and vehicle emissions. Nevertheless, the parties agree that the Proposed Development has been appropriately designed to ameliorate traffic noise and vehicle emissions in accordance with s 2.119(c) of the Transport and Infrastructure SEPP.
TfNSW provided comments in letters dated 6 February 2023 and 12 July 2024. In accordance with s 2.122(4) of the Transport and Infrastructure SEPP, the parties agree that these comments have been considered, along with consideration of the accessibility of the site, and potential traffic safety, road congestion and parking implications, pursuant to s 2.122(4) of the Transport and Infrastructure SEPP. This includes the Traffic and Parking Assessment Report prepared by CJP Consulting Engineers dated 9 December 2022 and filed with the Court in the Class 1 Application on 15 June 2023, and the Parking and Design Statement prepared by PDC consultants dated 25 June 2024 and filed with the Court on as part of Exhibit JE-1 on 27 June 2024.
The electricity supply authority, Ausgrid, has been consulted in accordance with s 2.48 of the Transport and Infrastructure SEPP. Ausgrid confirmed in its letter lodged on the NSW planning portal on or about 31 January 2024 that they do not object to the Proposed Development and provided conditions which are incorporated at Condition 17.
The rail authority, TfNSW (Sydney Trains), has been consulted in accordance with s 2.99 of the Transport and Infrastructure SEPP. Sydney Trains granted concurrence in its letter dated 8 February 2023 and provided conditions which are incorporated at Condition 15.
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 the 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.
[2]
Orders
The Court orders:
1. The appeal is upheld.
2. Development Application No DA-2022/403 for the demolition of existing structures and construction of a 10-storey commercial building above 3 levels of basement parking and associated landscaping on the land at 413-425 Princes Highway, Rockdale, is determined by the grant of consent, subject to the conditions set out in Annexure "A".
[3]
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: 31 July 2024
[4]
(1) In relation to glare, the parties include Condition 54 to ensure that adverse reflectivity from the commercial building are minimised.
(2) The outdoor area has been lowered to level 3, reduced in scale and reconfigured to increase building separation thus resulting in reducing the impacts to adjoining neighbours.
(3) The built form has been reconfigured to increase building separation and improve privacy.
(4) Solar access to neighbouring properties has been improved, particularly for adjoining residential balconies, as shown in the shadow diagrams filed on 27 June 2024 a copy of which is reproduced below at Figure 1 and Figure 2.
[5]
Figure 1: Shadow Diagrams - June Drawing DA 6001 Rev D
[6]
Figure 2: Shadow Diagrams - June Drawing DA 6002 Rev D.
[7]
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 and the parties explained how the jurisdictional prerequisites have been satisfied during the conciliation conference.
The Applicant is the owner of the Site.
The Site is located in the B4 Mixed Use zone pursuant to the Bayside Local Environmental Plan 2021 (BLEP) where development for the purpose of Commercial Premises is permitted with consent.
No maximum floor space ratio is identified for the site on the Floor Space Ratio Map referred to in cl 4.4(2) of the BLEP. Pursuant to the Height of Buildings Map referred to in cl 4.3 of the BLEP, there is a maximum heigh of 34m for the site. The Proposed Development complies with this limit, as shown in Figure 3 below.
[8]
Figure 3: LEP Height Blanket Drawing DA 7050 Rev D
[9]
The Site is identified as being affected by Class 5 acid sulfate soils on the Acid Sulfate Soils Map referred to in cl 6.1 of BLEP. The Contaminated Land Specialist for Bayside Council has confirmed in a memo dated 21 March 2023 that an Acid Sulfate Soil Management Plan is not required for the Proposed Development. This conclusion is informed by the Statement of Environmental Effects dated 12 December 2022 and the Preliminary Site Investigation dated 14 November 2022, both filed in the Class 1 Application on 15 June 2023.
The parties agree that the matters relating to earthworks in cl 6.2 of BLEP have been considered in accordance with that clause.
In relation to stormwater, cl 6.3 of the BLEP provides a jurisdictional prerequisite to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways, receiving waters and groundwater systems. The Proposed Development incorporates water sensitive urban design principles and the design is appropriate to minimise adverse impacts of stormwater in accordance with cl 6.3 of BLEP. To satisfy the terms of cl 6.3(3) of the BLEP, the development includes on-site detention, permeable surfaces are included in the proposed landscaping, and matters such as waterproofing and tanking of the basement are specified in Condition 16.
The Airports (Protection of Airspace) Regulations 1996 apply to the development application because the site is within an area defined in schedules of the Civil Aviation (Buildings Control) Regulations 1988. Sydney Airport Corporation has been notified and has provided approval by letter dated 23 January 2023 for the Proposed Development, being a controlled activity pursuant to s 183 of the Airports Act1996, reg 15A(2) of the Airports (Protection of Airspace) Regulations 1996, and cl 6.7 of the BLEP. Condition 18A has been included in the Annexure A conditions of consent to ensure compliance with the terms of this approval which provides that there is "no objection to the erection of this development to a maximum height of 49.2 m ... The approved height is inclusive of all lift over-runs, vents, chimneys, aerials, TV antennae, construction cranes etc".
The parties explain that cl 6.10 of the BLEP is satisfied because the Proposed Development exhibits design excellence in accordance with each of the matters listed in cl 6.10(4). I have referred to commentary on each of these matters in the report of the Bayside Design Review Panel dated 2 March 2023 filed with the Respondent's Bundle of Documents on 9 July 2024. That commentary noted that several matters were "not yet demonstrated" however, and as a result of the amendments to the Proposed Development, Mr Gerard Turrisi prepared an updated table on 16 July 2024 providing his opinion on how the amended proposal addresses those remaining matters and aligns with the RDCP. Consistent with Mr Turrisi's statement, the parties agree that the Proposed Development, as amended, exhibits design excellence. In accordance with Toga Penrith Developments Pty Limited v Penrith City Council[2022] NSWLEC 117, I adopt Mr Turrisi's reasons to achieve the requisite state of satisfaction that the Proposed Development exhibits design excellence as required by cl 6.10 of the BLEP, and I reproduce these below as follows:
[10]
"DESIGN EXCELLENCE ASSESSMENT
PURSUANT TO CL 6.10 OF BAYSIDE LEP 2021
A. Built form creates a base, middle and top to align with the podium and tower controls within the site-specific controls contained within the DCP. The use of brick reinforces the balance of glass, and provides an appropriate raising to the building. Condition 19 requires details of those finishes.
B. Landscape is provided to Princess Highway and to the corners of the built form, including additional public domain areas to the northern corner of the site public out along Waines Crescent.
C. The built form has been shaped to allow view corridors from the public domain, and from surrounding properties given the overlaps created by the upper level overbearing the lower level.
D. The built form complies with the height control and meets relevant green corridor provision under the DCP, as well as the outcomes required for setbacks that have regard to amenity issues such as overshadowing and privacy.
(i) There are no unreasonable impacts created by the proposal, and the built form in terms of finishes is assisted by condition 19, and thus the proposal is deemed suitable.
(ii) Proposed building provides for various commercial uses that are permitted in the zone.
(iii) There are no heritage concerns, and the built form has been appropriately shaped to address streetscape issues, including landscape at the street level/ public domain
(iv) The proposed setbacks and interface with the surrounding properties are deemed acceptable as detailed above.
(v) Bulk and massing aligns with the outcomes of a base, middle and top including provision of stepping through level changes via the overlap of the built form.
(vi) The proposal provides for a podium form to the street for 3 stories to align with Council's DCP.
(vii) Environmental issues such as reflectivity has been advised via condition 54, and there are sustainable outcomes provided within the scheme such as water management of the like. Overshadowing is appropriately addressed to the neighboring properties.
(viii) A section J Report was provided to address sustainability issues.
(ix) Access managements have been deemed to be acceptable. Appropriate pedestrian access to the building is provided including connectivity through the site to Waines Crescent.
(x) Public domain has been improved as detailed above.
(xi) The built form addresses the street frontage and provides active connectivity.
(xii) The landscape design aligns with Council's green gateway outcomes as identified within Council's DCP."
[11]
Essential services are available for the proposed development as required by cl 6.11 of the BLEP.
The Proposed Development is integrated development pursuant to s 90 of the Water Management Act 2000 (WA Act) due to the proximity of the proposed basement level to the groundwater table. Water NSW has provided general terms of approval under s 90 of the WA Act, and those terms of approval are incorporated into the Conditions, at Condition 16.
I have considered whether the Site is contaminated pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. The Detailed Site Investigation dated 12 December 2023 and the Remediation Action Plan dated 20 December 2023, each filed with the Court as part of Exhibit JE-1 on 27 June 2024, conclude that the Site can be made suitable for the proposed commercial development.
The Site fronts onto the Princes Highway which is a classified road. Although the Proposed Development does not seek consent to do works on the classified road pursuant to s 138 of the Roads Act 1993 (Roads Act), Transport for NSW (TfNSW) has been consulted in accordance with s 138 of the Roads Act as well as pursuant to ss 2.118, 2.119 and 2.122 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). TfNSW provided conditions in its letter dated 12 July 2024 and these are incorporated at Condition 14.
The Proposed Development seeks vehicular access to the Site to be provided from Waines Crescent, and not from the Princes Highway, in accordance with ss 2.118 and 2.119 of the Transport and Infrastructure SEPP. The parties agree, and I accept, that the safety, efficiency and ongoing operation of Princes Highway will not be affected by the Proposed Development, satisfying the terms of s 2.119(b) of the Transport and Infrastructure SEPP. As the Proposed Development is for a commercial development it will not be particularly sensitive to traffic noise and vehicle emissions. Nevertheless, the parties agree that the Proposed Development has been appropriately designed to ameliorate traffic noise and vehicle emissions in accordance with s 2.119(c) of the Transport and Infrastructure SEPP.
TfNSW provided comments in letters dated 6 February 2023 and 12 July 2024. In accordance with s 2.122(4) of the Transport and Infrastructure SEPP, the parties agree that these comments have been considered, along with consideration of the accessibility of the site, and potential traffic safety, road congestion and parking implications, pursuant to s 2.122(4) of the Transport and Infrastructure SEPP. This includes the Traffic and Parking Assessment Report prepared by CJP Consulting Engineers dated 9 December 2022 and filed with the Court in the Class 1 Application on 15 June 2023, and the Parking and Design Statement prepared by PDC consultants dated 25 June 2024 and filed with the Court on as part of Exhibit JE-1 on 27 June 2024.
The electricity supply authority, Ausgrid, has been consulted in accordance with s 2.48 of the Transport and Infrastructure SEPP. Ausgrid confirmed in its letter lodged on the NSW planning portal on or about 31 January 2024 that they do not object to the Proposed Development and provided conditions which are incorporated at Condition 17.
The rail authority, TfNSW (Sydney Trains), has been consulted in accordance with s 2.99 of the Transport and Infrastructure SEPP. Sydney Trains granted concurrence in its letter dated 8 February 2023 and provided conditions which are incorporated at Condition 15.
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 the 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.
[12]
(1) The appeal is upheld.
(2) Development Application No DA-2022/403 for the demolition of existing structures and construction of a 10-storey commercial building above 3 levels of basement parking and associated landscaping on the land at 413-425 Princes Highway, Rockdale, is determined by the grant of consent, subject to the conditions set out in Annexure "A".