Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council

Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council - [2022] NSWLEC 1180 - NSWLEC 2021 case summary — Zoe

[6]

Site and setting

I acknowledge my reliance on the Statements of Facts and Contentions (SoFaC) filed by Council in regard to these two appeals for the following descriptive material. The final amending SoFaCs, in regard to the early works DA and detailed design DA, were each filed on 3 September 2021 and tendered into evidence as Ex 20 and Ex 27, respectively.
The site is legally identified as Lots 110 and 111 in DP 883295. It has an area of some 21,029m² and is approximately rectangular in shape (with the exclusion a rectangular block towards the south-east corner). The site sits on the western side of Euston Road and has a 178m (approx) frontage to it. The site depth is 112m (approx). The other three site boundaries all generally abut Sydney Park. The site is relatively flat and sits lower on its northern and western sides than the adjacent parklands.
The site currently contains two large warehouse buildings and is accessed by two driveways from Euston Road. The site has a history of past contaminating uses including a gasworks and metal manufacturing.
Sydney Park is a 40ha open space area which contains wetlands, green open spaces, trees, pathways and playgrounds. It is described in the Sydney Park Plan of Management as having "a diverse ecosystem, historical sites and extensive parklands". Other nearby land uses are predominantly industrial.
Euston Road is being upgraded as part of the NSW government's 'WestConnex' project with three lanes of traffic in each direction. The WestConnex St Peters interchange is nearby. There are 70,000 vehicles a day forecast to use Euston Road once WestConnex is fully operational.
Across Euston Road is the Alexandra Canal locality within an area designated by Council as the "Southern Employment Lands", and identified for its growing strategic economic role in supporting Sydney Airport-related activities and more generally. Existing industrial premises nearest to the site, mostly on the eastern side of Euston Road, include three concrete batching plants operating 24 hours per day, along with manufacturing and distribution centres. See air photo at Figure 1. Figure 1 - Surrounding context 2020 aerial photo - site outlined in red (Source: Exhibit 1 p 7)

[8]

Detailed design DA

The architectural plans for the detailed design DA were tendered into evidence as Ex JJJ, with landscape plans tendered as Ex KKK. I paraphrase from Ex 27 (pp 26-38) to provide the following description of the detailed design DA:

Provision of eight mixed use buildings comprising 356 residential apartments, two basement levels, ground level and basement offices and ground floor retail spaces.
Four buildings would front Euston Road and wrap around the north-east corner of the site (Buildings A, B, C and D). See Figure 2 for site layout. These are referred to as the 'Euston Road buildings'. An additional four buildings would splay from the centre of the site westward towards the boundary with Sydney Park (Buildings E, F, G and H). These are referred to as the 'Parkside buildings'.
An internal plaza area with play space, landscape and artistic features is proposed between the Euston Road buildings and Parkside buildings. Retail tenancies and a communal pool, proposed in the Euston Road buildings, face west into the plaza. Generally, office space fronts Euston Road in these buildings.
Apartment mix would comprise 5 x studios, 72 x single bedroom 201 x two bedroom and 78 x three bedroom.
Buildings A, B and C (fronting Euston Road) are of six storeys height. They would be connected via fixed acoustic glass infills sitting between the buildings. A metal "landscaped veil/wavy screen" would present along the front eastern elevation of Buildings A, B and C. The metal veil acting as a trellis base for landscaping.
The Euston Road buildings are connected via a walkway at the rooftop level that bridges breezeways located between Buildings A, B and C. The Euston Road buildings include a communal rooftop space accessed from lifts in Buildings A and B and inaccessible green roofs and mounds to lift overruns. Building D wraps around the north-east corner of the site and has a frontage to Euston Road and Sydney Park.
The Parkside buildings are to a maximum of seven storeys but with staggered height, lower towards Sydney Park. Each building also contains two storeys of commercial uses, at their very eastern end, adjoining the internal plaza. The roof contains raised tree planters, inaccessible green roof planting and photovoltaic panels. The buildings would be separated by deep soil areas and landscaping, increasing towards the west and the park.
Vehicle access to basement parking is via a deceleration lane off Euston Road then left-in left-out driveway at the north-eastern part of the site. There would also be a left turn only egress at the south-eastern end of the site. Figure 2 - Building layout (source: Exhibit 27 p 27)

[9]

Contentions

At the commencement of the proceedings, and at the point of the initial filing of Ex 5 and Ex 3 (SoFaCs in regard to the early works DA and detailed design DA respectively), numerous contentions were raised by Council in relation to these matters.
In relation to the detailed design DA, contentions were raised in regard to: 1. Inconsistency with the concept approval; 2. Building height; 3. Non-demonstration of design excellence (including in regard to: (a) architectural, urban and landscape design, (b) inadequate consideration of acoustics for proposed apartments and public space, (c) pedestrian and cyclist safety); 4. Suitability of the site for the development (including in regard to (a) external noise, (b) flooding and stormwater implications); 5. Interface with Sydney Park, including in regard to impact on trees and fencing; 6. Interface with Euston Road, including in regard to deceleration lane arrangements and consequent effects on the public pathway; 7. Internal separation arrangements between buildings; 8. Acoustics and natural ventilation; 9. Waste management.
Council also drew attention to the numerous lay submissions objecting to the overall proposal.
In relation to the early works DA, Council originally raised concerns in regard to the fact that demolition would result in a long term visual impact and was premature (given no consent was expected in the shorter term for detailed development). While there were some particulars which received attention via expert evidence, in particular in relation to conditions of consent ultimately agreed between the parties, it is fair to say that Council's key concern in regard to the early works DA was related to the determination of the detailed design DA. Council saw fault in approving the early works DA until there was a resolution of the detailed design DA. It will be seen that the rest of the judgement is mostly concerned with the detailed design DA. I come back to the early works DA towards the end of the judgement as I draw my conclusions.
As indicated earlier, by the conclusion of the hearing of evidence, and by which time there were substantial further amendments to the detailed design DA and further information provided in relation to the early works DA, all of the matters which had earlier been in contention in relation to each of the two appeals were resolved to the satisfaction of the experts. That is to say, Council no longer pressed nominated contentions with expert evidence. There is an exception in regard to Contention 15 in relation to the detailed design DA and Contention 3 in relation to the early works DA ("development is not in the public interest"). Council associated this contention, in relation to both matters, with the extent of objecting submissions made in regard to the proposal.

[13]

Incompatibility with, and impacts upon, Sydney Park and the enjoyment of users

At the centre of the concerns raised on this topic was that experiences in Sydney Park would be adversely affected by the proposal. New buildings would "sky-line" above existing vegetation when viewing from a number of areas within the park, including some well used pathways, destroying the sense of tranquillity. The eventual building massing would be an eyesore affecting the enjoyment of the park. A key issue here is the height of the proposed buildings (which breaches the SLEP building height standard). There was also a concern that some existing trees, which bring about some screening of the site at present, would be at risk as a consequence of the proposed development.
Below, a consideration of the contravention of SLEP's building height standard is undertaken (see [60]-[84]). I note here that the final plans before the Court bring forward a number of points of detail which, according to the agreed evidence of the urban design and planning experts, effectively mitigate the proposal's otherwise visual intrusion into the park (Ex 28 p 7).
I note the proposal essentially provides for a 6m building setback to the Sydney Park boundary in accordance with the concept approval (earlier iterations of the proposal had breached the 6m control significantly). Ms Pressick's evidence is that the building envelope itself, including the limited exceptions which do reach into the 6m setback, are "extremely tightly defined" with setbacks that "enabled the trees in the park to be protected" (Transcript 20/10/2021 p 58). Importantly, in regard to setbacks the experts advised in a further Joint Report in regard to the proposed concept approval modification (Ex 25 p 7): "Council's arborist is satisfied that the existing trees in Sydney Park are able to be protected. Council's landscape architect, urban designer and planner are satisfied that adequate space is available in the setback areas to accommodate a vegetated interface to Sydney Park."
Similar conclusions were drawn in regard to the detailed design DA (Ex 28 p 7).
Dense planting of the upper floors and roofs of all of the buildings is proposed, in part with the aim of "obscuring" and "blurring" the massing of the building from Sydney Park (Design Verification Statement Ex LLL p 7). A concern raised by Council was in regard to the detailing of this aspect, including the adequacy of intended roof soil depths and arrangements for maintenance, including how safety concerns might be addressed. According to the landscape experts, the proposal is now satisfactory in regard to these matters. With the architectural and landscape plans before the Court and agreed conditions, the landscape experts are satisfied with soil depths, planting and use of the roof areas, including in regard to landscape maintenance. (Joint Report Landscape Experts filed 22 September 2021 Ex 29 p 6-7).
With the proposed building setbacks from Sydney Park (and consequent expected retention of all the nearby trees within the park), substantial areas of the rooftop of all buildings accommodating agreed rooftop planting, and the potentially jarring effect of proposed lift overruns also mitigated through encircling by landscaped mounds; I accept the advice of the planning and design experts that a satisfactory visual relationship with Sydney Park is proposed.
In regard to overshadowing, Ms Pressick and Ms Swan advised that while overshadowing would fall mainly on the road reservation, the concept approval provides for some overshadowing of the park. The experts were satisfied that the proposal would be consistent with the existing concept approval in this regard and would not unreasonably overshadow Sydney Park (relevant expert commentary is at Transcript 20/10/2021 p 63).
In regard to light spill, Mr Dickson took me to plans showing the key pedestrian cycling pathways and demonstrated through aerial photographs that there was, for the most part, large areas of vegetation between these more well used areas of Sydney Park and the proposed buildings. In his opinion, light spill would be "very low when experienced from those pathways" (Transcript 20/10/2021 p 66). It was also noted that there is already lighting in some areas of the park, in part at least to provide for safe use in evenings.
Having regard to my finding at [84] in regard to the contravention of the SLEP building height control, and the above consideration, I accept the evidence of the experts that the proposed development would be compatible with Sydney Park and would not bring about an unreasonable adverse effect on user enjoyment of the park. I further note that the application as now proposed would fence the site off from Sydney Park and deny direct access from the site (Annexure B Condition 10), a change from previous iterations.

[15]

Relationship with Euston Road and compatibility with nearby industrial uses

There were also objections raised in regard to the proposal's interface with Euston Road, in particular that due to the required deceleration lane (for vehicle entry into the site) there would be insufficient area for both a walkway and landscaping. There were seen to be potential safety risks for pedestrians and cyclists. There was also a concern about access of Euston Road more generally.
The proposal now provides for a boundary adjustment adjoining the deceleration lane to achieve a public domain width of 6.1m for footpath, landscaping and verge, accommodating deep soil for canopy trees (Ex 25 p 8). There was also a good degree of confidence on the part of the design experts that there can be effective street activation along Euston Road in the site environs, noting the services which would be located particularly at the northern end of the site (Transcript 20/10/2021 p 60). The proposal, as conditioned (including conditions imposed by TfNSW), provides for satisfactory traffic management according to the expert advice.
There were also noise-related concerns raised in objecting submissions. There were two aspects to them. First was the concern that residential development at the site (especially given its adjacency to Euston Road with expected increasing traffic flows as a link road to WestConnex) provided for an inappropriate land-use mix. Second was the concern that residential development would bring a threat to the ongoing operation of nearby industrial uses (significant noise generators) which currently have consent to operate 24 hours a day and the future industrial uses on the eastern side of Euston Road more generally (and area designated by Council as the Southern Employment Lands). Council's contentions had originally nominated concerns of entirely the same kind.
The resolution of the proposal's acoustics, in juxtaposition with the achievement of the required airflow to apartments, was a matter of detailed expert attention in these proceedings. With the final architectural plans now before the Court and agreed conditions which together detail: façade treatment, individual apartment window types (as relevant) and airflow arrangements, the acoustic and airflow experts agree that all relevant concerns are addressed (Supplementary Joint Acoustic Report filed 5 October 2021 Ex 31 and Transcript 20/10/2021 p 29-31 depicting oral evidence from acoustic and airflow experts). Behind the acoustic findings was a specialist report prepared by Wood and Grieve dated 30/9/2021 and annexed as Appendix B to Ex 31, which according to Dr Tonin provides the information required for the resolution of acoustic contentions.
Particular attention was given to the ongoing operation of nearby industrial uses. The premises of most attention was the nearest concrete batching plant to the site, located immediately opposite and with consent to operate 24 hours per day. Dr Tonin indicated that he was happy that the acoustic design for the proposal of itself was satisfactory, but also referred to the addition of a condition of consent (Annexure B Condition 84) which provided a further degree of assurance for the 24 hour operating premises (Transcript 20/10/2021 p 31-32). I am satisfied that the proposed mixed use development, as conditioned, can co-exist with existing industrial premises, and would not unreasonably prejudice future employment generating development in the Southern Employment Lands.

[19]

Sydney Local Environmental Plan 2012

I note that the site is zoned B4 Mixed Use under SLEP. I have given consideration to the zone objectives.
Clause 4.3 relates to height of buildings. The detailed design DA would contravene the maximum height of building development standard at cl 4.3 of SLEP. There is no jurisdiction to approve development contravening a development standard under SLEP unless the permissive powers available under cl 4.6 are triggered (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [13]). In this instance the applicant has opened the door to these permissive powers through submission of a written request under cl 4.6(3) (tendered into evidence as Ex NNN). It will be seen that I find favourably in regard to the permissive powers of cl 4.6 (see [60] et seq).
Clause 4.4 is concerned with floor space ratio (FSR). There is comfortable compliance with the relevant standard. The applicable FSR control is 2.5:1 under SLEP and the floor space calculations contained in the addendum statement of environmental effects dated 2 August 2021 (Ex MMM p 5) show the proposal at 2.07:1.
Clause 5.21 is concerned with flood planning. This topic has been another prominent consideration in this matter. The final flood modelling and stormwater strategy (as prepared by CJ Arms dated 2/8/2021 tendered as Ex SSS) worked through related matters (including the provisions of Section 3.7 of Sydney Development Control Plan 2012 (SDCP)) concluding that with the proposed flood and stormwater management strategy, there would be no material impact on the surrounding Euston Road flood levels nor the adjoining development. I am satisfied in regard to the flood planning considerations.
Part 6 Division 4 of SLEP is concerned with design excellence. Clause 6.21C is the operational provision. Further to the provisions of the concept approval (see [6]), cl 6.21C(1) of SLEP provides that: Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.
Clause 6.21C(2) then provides a list of matters to which a consent authority must have regard to when determining its opinion as to whether a proposed development exhibits design excellence. Clause 6.21D(1) provides that a competitive design process needs to be held in relation to the detailed design DA. This has occurred and is explained at [6].
While an earlier iteration of the detailed design DA had been deficient, the scheme as now before the Court embodies: 1. building setbacks, designation of deep soil areas, and ground and building landscaping which would ensure a good relationship with the public domain areas in Sydney Park and Euston Road including no unreasonable view loss from public vantage points 2. a more complete response to flooding risk 3. resolution of acoustic and at the same time airflow requirements expected of SEPP 65 4. effective visual privacy provisions including in between the proposed buildings, and 5. achievement of BASIX requirements in regard to ecological sustainable development.
Underpinning each of these aspects is the fact of the overall landscape and architectural response to the contextual setting, with the proposal generally aligning with winning submission in regard to the competitive design process initiated under SLEP. In oral evidence, the planning and urban experts explained that there had been a large effort on the part of the many individuals involved in the resolution of the various issues and inter-relationships arising in the finalisation of the scheme, in accordance with design excellence parameters. Ms Pressick indicated that the experts were of the view that the proposal before the Court exhibited design excellence (Transcript 20/10/2021 p 62) at the time, and with no disagreement from others, indicating that she spoke on behalf of the other planning and urban design experts in the virtual witness box at the time (ie Mr Dickson, Ms Swan and Ms Robinson).
It is my belief that the evolution of the plans now before me evidence a complex design resolution process involving specialists from many fields, relating to one another, across disciplines, to achieve points of resolution. I am convinced, having considered the matters listed at 6.21C(2) and heard now from many experts in relation to the project, that the proposal before me is something which exhibits design excellence.
Clause 7.14 is concerned with acid sulfate soils. The site falls into the area designated as Class 3 in regard to acid sulfate soils. As required under cl 7.14(3), an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual (Acid Sulphate Soils Management Plan prepared by EP Risk, reference EP1327.004_V2 dated 17 December 2019). Compliance with the recommendations of the plan is required under Condition 47 of the consent for the early works DA (Annexure A to this judgement) and Condition 142 of the detailed design DA (Annexure B of this judgement).
Clause 7.23 is concerned with retail development outside planned centres. I accept the advice in Ex MMM p 10 that none of the proposed shops would exceed a gross floor area of 1000m2.

[20]

Height of buildings development standard contravention

The maximum building height applying to the site under cl 4.3 of SLEP is 18m. Clause 6.21(7) of SLEP makes allowance for a proposal to be eligible for an additional 10% in building height above that available under cl 4.3. This additional 10% is contingent on the consent authority being satisfied that the proposal exhibits design excellence. I have indicated above that I am satisfied that the proposal does so (see [57]). Nonetheless the detailed design DA would still contravene in regard to building height notwithstanding this 10% "bonus", which would bring the numerical control up to 19.8m in this instance.
The applicant is seeking an exception for the contravention under cl 4.6(2) of the SLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5); (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the Applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, …
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action at [14]).
The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3) of SLEP. The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
The applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request was prepared by Ethos Urban and is dated 2 August 2021 (Ex NNN).
The particulars of the variations in building height as proposed in the detailed design DA are explained in Ex NNN (p 10-14). Figure 3 provides Table 1 from Ex NNN which details both parapet and maximum heights of each of the eight buildings. Figure 3 - Table of maximum heights of Buildings A-H (source: Clause 4.6 written request by Ethos Urban Ex NNN p 10)

[21]

Whether compliance unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of SLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ("Wehbe"). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of SLEP, which are reproduced below:
I reproduce the list of objectives of cl 4.3 below: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views outside Central Sydney, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, (e) in respect of Green Square - (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces..
In regard to the first objective, the written request introduces the site and its context (with Sydney Park a prominent element) then explains why the proposal would sit appropriately within it. It notes the existing development on the site including its massing as perceived in Sydney Park. It then explains the proposed design features which together respond to the park interface. This is through the significant tree planting at building edges and rooftop levels which would provide an effective transition, in a sense "(continuing) the canopy and undulating topography of Sydney Park" (Ex NNN p 17). At the macro scale, the proposal would be set against significantly taller buildings when viewed from the park (to the south-east over Mascot). Photomontages assist on this point. The written request also references SDCP, in particular the relevant Locality Statement (section 2.7.10). The written request notes the proposal's accordance with principles relating to the progressive conversion of existing industrial buildings on Euston Road to mixed use development with ground floor retail and commercial uses and residential above, and that the areas of height contravention have good degrees of modulation and articulation, including in relation to the variety of materials which reduce perceived bulk and scale. The written request argues the proposal, notwithstanding the height contraventions, would be perceived as something of positive visual amenity, appropriate to the conditions of the site and context. Through the explanation provided, as summarised above, the written request adequately demonstrates that the development would achieve the first objective.
In regard to the second objective, the written request observes that the site is not a listed heritage item, nor is it situated within a conservation area or in the immediate vicinity of a heritage item. It is suggested that a group of terraces at 2-34 Campbell Road (listed as Item I12 in SLEP) are located approximately 150m south west of the site, on the other side of Sydney Park. Another listed item is some 550m north west (Bedford Brickworks, including chimneys, kilns and grounds (Item I27 in SLEP). I accept the advice in the written request that there is sufficient distance separation to effect an appropriate height transition between the proposal and heritage items and buildings in heritage conservation areas or special character areas.
In regard to the third objective, the written request observes that the proposal would not adversely affect private views given its separation from private property. The written request refers to the detailed assessment of public views (from the park) (tendered into evidence as Ex KK), and provides some photos from this work. Views from within Sydney Park were seen to be reasonably shared and, the written request effectively argued that the views from within Sydney Park would not be unreasonably affected. The written request adequately demonstrates that the proposal achieves the third objective.
The fourth and fifth objectives are not relevant as the site is not in Central Sydney or Green Square.
The written request has adequately demonstrated that the underlying objectives of SLEP's height of buildings standard have been achieved notwithstanding the contravention of the numerical control. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

[22]

Whether sufficient environmental planning grounds to justify contravention

The written request argues a series of environmental planning grounds as justifying the contravention. The first is in regard to the improved flood planning outcome. The amendments to Council's adopted flood planning levels (between the originally approved concept approval and the present) had the effect of requiring an additional 1.1m to habitable floor levels, all other things being equal, pushing up the building height. Reference is also made to the addition of a "transfer slab" on the Euston Road buildings, which would facilitate the mix of retail and residential uses on Euston Road. In accordance with previous submissions, the written request argues the proposal provides for an appropriate visual relationship with Sydney Park due to architectural and landscape architecture design elements, in particular the recessing of the Parkside buildings (ie increased setback to the park) as height increases. The overall design quality of the development is also cited as an environmental planning ground. Of note here is the written request's reference to the objects of the EPA Act, in particular object (g) in relation to the promotion of good design and amenity of the built environment. The written request references the fact that the interrelated landscape and architecture, as proposed, represents the outcome of a design competition under SLEP, and that this design ensures that the height variation is visually sensitive. It is also noted that the original concept application approval already provided for a building height in exceedance of the SLEP control. These arguments, as put in the written request, are sufficient environmental planning grounds to justify the contravention of the building height standard.
Together, the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of SLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

[23]

Public interest

I now turn to the test at cl 4.6(4)(a)(ii) of SLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B4 zone.
I agree with and rely on the written request's demonstration that the proposed development is consistent with the objectives of the applicable building height standard.
The zone objectives are reproduced below: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres.
I am satisfied that with the particulars of the design, including in regard to building height, setbacks and landscaping, the proposal has a compatible relationship with Sydney Park. The detailed design of the apartments, including in regard to noise management particulars and air flow requirements provides for a compatible relationship between the proposed residential apartments and non-residential uses on and off site. The proposal is consistent with the first zone objective.
The proposal does provide for an integration of business, retail and residential development in an accessible location. The location has good access to public transport but also Sydney Park. Given the setting the proposal is seen to be consistent with the objective of maximising public transport use. The proximity of new residences to Sydney Park would encourage walking and cycling. The proposal is consistent with the second zone objective.
The scale of the proposed retail and commercial and activity on the site would not be such as to adversely affect the viability of centres. The proposed additional population would support the viability of centres. The proposal is consistent with the third zone objective.
On the basis of the above I find the development consistent with the B4 zone objectives.
Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard, and the objectives for development within SLEP's B4 zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of SLEP are met in regard to the height of buildings contravention.

[25]

State Environmental Planning Policy (Transport and Infrastructure) 2021

Section 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) is concerned with the impact of road noise or vibration on non-road development, and is triggered given these expected traffic volumes. A detailed acoustic assessment has been undertaken for the project (prepared by Wood and Grieve Engineers dated 30 September 2021 Ex OOO). This work has taken into consideration the 'NSW Department of Planning's 'Development near Rail Corridors and Busy Roads (Interim Guideline)' (Ex OOO p 1 and 17). I too have taken into account the Interim Guideline as required under s 2.119(2) of SEPP Transport and Infrastructure. Predicted road noise generation upon completion of the above road works is provided. A detailed schedule of glazing (including double glazing and its spacing) requirements for individual apartments are prescribed, responsive to particular settings (Ex OOO p 25-28). That is to say, the Euston Road buildings require more substantial noise amelioration than the Parkside buildings (given the Euston Road buildings in part shield them from road noise). Given Ex OOO's findings, and their reflection in agreed consent conditions (eg Condition 85) and mindful of the agreed supportive advice of the acoustics experts in the proceedings, I am satisfied that appropriate measures will be taken to ensure the requirements of s 2.119(3) of SEPP Transport and Infrastructure are met.
Euston Road has a local road classification (Traffic Impact Assessment dated 3/8/2021 Ex RRR p 10). Section 2.121 of SEPP Transport and Infrastructure applies as the proposal would accommodate more than 300 dwellings. TfNSW has been consulted with regard to the proposal. The key requirement from Council and TfNSW, given the expected future traffic volumes relating to a completed WestConnex interchange, was that the proposal provide an appropriate deceleration lane for the site ingress. The relevant requirements have been satisfied. TfNSW has also issued General Terms of Approval in relation to the proposed deceleration lane which are provided at Schedule 3 to the proposed consent conditions.

[27]

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) includes provisions in regard to contamination and remediation. The provisions of s 4.6 require a consent authority to consider whether land is contaminated. In this instance the land has been found to be contaminated, and as such the provisions of s 4.6(1)(b) and (c) apply. These provisions require a consent authority to be satisfied that:

the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, that the land will be remediated before the land is used for that purpose.

I am satisfied in regard to the above two matters mindful of the investigations undertaken to date and the conditions which have been applied. In particular I reference Conditions 34 and 35 to the early works DA (Annexure A to this judgement). These conditions refer to the Remediation Action Plan, prepared by, EP Risk, reference EP1327.003_v4 (2021/353003) dated 28 May 2021 and the Section B Site Audit Statement (SAS-B) (2021/353017) and Site Audit Report (2021/353016) reference number MP120-B, prepared by Melissa Porter and dated 4 June 2021, and require the site to be remediated in accordance with these reports. In addition, all remediation work is to be carried out in accordance with the guidelines in force from time to time under the Contaminated Land Management Act 1997 (Condition 35(c)). I am satisfied in regard to the matters listed in s 4.6(1). I also note, having regard to the lay submissions raising concerns in regard to potential damage to trees in Sydney Park, that the conditions of consent for the early works DA make particular reference to tree protection, both by referencing the Tree protection plan prepared by Sue Barnsley Design (Condition 1) and through conditions including requiring compliance with the conditions of the arboricultural impact assessment (Condition 12).

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Parties

Cases Cited (5)