COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by SK Group Properties Pty Ltd (Trustee of SK Group Property Trust) (the Applicant), against the deemed refusal of Development Application DA-2023/225 (the DA) by Bayside Council (the Respondent).
At the date of its lodgement on 17 August 2023, the DA sought consent for the demolition of the existing structures and construction of a mixed-use (shop top housing) development including commercial premises on the ground level, seniors housing (Level 1), residential housing (Levels 2-8) and two levels of basement parking at 609 Gardeners Road, Mascot (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 July, 16 August, 10 and 30 September, 18 October, 8 and 15 November 2024. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of building height exceedance, floor space ratio (FSR) exceedance, unsatisfactory design quality and a failure to exhibit design excellence, incompatibility with existing and desired future character, inadequate street activation, an inappropriate apartment mix, safety and security concerns, inadequate landscape area, and inadequate information, amongst other contentions.
Agreed design amendments have been made to improve the proposed building's relationship to the site, its context and the desired future character of this part of Mascot. Changes have been made to improve internal residential amenity and access to communal open space. The ground floor level has been amended to better activate the adjacent streets. During the conciliation conference, the parties agreed to substitute the provision of housing for seniors to affordable housing at Level 1 of the amended DA.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The DA was publicly notified between 6 September 2023 and 6 October 2023. A total of eight submissions were received by the Respondent.
At the commencement of the conciliation conference, the Court benefited from submissions made by one resident objector, who raised concerns including:
1. Overshadowing impacts and loss of solar access.
2. Traffic congestion and lack of availability of on-street parking.
3. Excessive building height and FSR.
During the conciliation conference and subsequent adjournments, amended plans were notified to the objectors and one further submission was received from an existing objector.
The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the Bayside Local Environmental Plan 2021 (BLEP) is the relevant local environmental planning instrument. The site is zoned MU1 Mixed Use. The amended DA - characterised as mixed-use (shop top housing) development including commercial premises on the ground level, and residential accommodation including infill affordable housing - is permissible with consent within the MU1 zone.
The parties agree, and I am satisfied, that pursuant to cl 2.3 of the BLEP, the amended DA is consistent with the MU1 Mixed Use zone objectives, which includes:
To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.
To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
To minimise conflict between land uses within this zone and land uses within adjoining zones.
To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
To ensure built from and land uses are commensurate with the level of accessibility, to and from the zone, by public transport, walking and cycling.
The parties agree, and I am satisfied, that pursuant to cl 2.7 of the BLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.
The parties agree, and I am satisfied, that all principal development standards of the BLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings and cl 4.4 - Floor space ratio (FSR).
In such an instance, cl 4.6 of the BLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
Clause 4.6 of the BLEP then requires the consent authority (the Court in this instance) to be satisfied that the Applicant's written request adequately addresses the matters set out at cl 4.6, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard (for height of buildings and FSR) and the objectives for development within the zone (MU1 Mixed use) in which the development is proposed to be carried out.
Additionally, cl 4.6 of the BLEP requires the concurrence of the Planning Secretary be obtained, and requires the Planning Secretary to consider whether the proposed contravention of the development standard raises matters of significance for State environmental planning, and the public benefits of maintaining the standard.
Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.
The Applicant has provided two separate written requests seeking to vary the height of buildings and FSR development standards respectively, each prepared by Chapman Planning Pty Ltd and dated 8 November 2024.
Dealing firstly with height of building - pursuant to cl 4.3 of the BLEP the site is subject to a height of building development standard of 26m.
The amended DA proposes a maximum building height of 31.8m, exceeding the relevant height of building development standard by 5.8m and representing a variance of approximately 22.3%.
The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:
1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.
2. The proposal presents as an eight- to nine-storey mixed use residential apartment building consistent with a number of neighbouring apartment buildings of a similar or greater scale.
3. The amended DA is consistent with key parameters of the Apartment Design Guide (ADG) and ensures acceptable internal amenity for residential apartments.
4. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.
5. The objectives of the BLEP Zone MU1 Mixed Use land use zone include to encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities, to ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces, to minimise conflict between land uses within this zone and land uses within adjoining zones, to encourage business, retail, community and other non-residential land uses on the ground floor of buildings, and to ensure built from and land uses are commensurate with the level of accessibility, to and from the zone, by public transport, walking and cycling. I am satisfied the amended DA is consistent with these objectives.
6. The objectives of cl 4.3 of the BLEP include to ensure that building height is consistent with the desired future character of an area, to minimise visual impact of new development, disruption of views, loss of privacy and loss of solar access to existing development, and to nominate heights that will provide an appropriate transition in built form and land use intensity. I am satisfied the amended DA meets these objectives.
Further, as part of the justification for the proposed height of building variation, the Applicant places weight on the current infill affordable housing bonuses available under Ch 2, Pt 2, Div 1 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Pursuant to s 18(3) of SEPP Housing, development is a provision that includes a residential apartment building or shop top housing and provides a minimum of 10% of the proposed Gross Floor Area (GFA) as affordable housing is eligible for additional building height. The additional building height is calculated as twice the percentage of affordable housing GFA provided (up to a maximum height of building bonus of 30%).
The parties agree, and I am satisfied, that under s 8(1), Sch 7A of SEPP Housing, the bonus height of building provisions only apply to development applications made after 14 December 2023. The subject DA was lodged on 17 August 2023, so these provisions do not apply.
The parties also agree that the Court can be satisfied that compliance with a current planning instrument is sufficient justification for variation where development controls have been relaxed but are subject to a savings provision in accordance with the reasoning given in Barhom v Randwick City Council [2024] NSWLEC 1357.
In the case of the amended DA, the proposal provides 13.8% of the proposed GFA for the purposes of affordable rental housing and hence, under s 18(2) of SEPP Housing (were it to be applied), the amended DA would be eligible for an additional 27.6% (or 7.18m) of building height. Application of the additional building height would increase the maximum permissible building height to 33.18m and the amended DA (at 31.8m) would comply with the relevant provisions of the current SEPP Housing.
Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.
Dealing next with FSR - pursuant to cl 4.4 of the BLEP the site is subject to a FSR development standard of 2.5:1.
The amended DA proposes a FSR of 3.18:1m, exceeding the development standard by 1,085.5sqm and representing a variance of approximately 27.4%.
The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the FSR development standard for the following reasons:
1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.
2. The proposal presents as a eight- to nine-storey mixed use residential apartment building consistent with a number of neighbouring apartment buildings of a similar or greater scale.
3. The amended DA is consistent with key parameters of the Apartment Design Guide (ADG) and ensures acceptable internal amenity for residential apartments.
4. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.
5. The objectives of the BLEP Zone MU1 Mixed Use land use zone include to encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities, to ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces, to minimise conflict between land uses within this zone and land uses within adjoining zones, to encourage business, retail, community and other non-residential land uses on the ground floor of buildings, and to ensure built from and land uses are commensurate with the level of accessibility, to and from the zone, by public transport, walking and cycling. I am satisfied the amended DA is consistent with these objectives.
6. The objectives of cl 4.4 of the BLEP include to establish standards for the maximum development density and intensity of land use, to ensure buildings are compatible with the bulk and scale of the existing and desired future character of the locality, to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing or likely to undergo a substantial transformation, to ensure buildings do not adversely affect the streetscape, skyline or landscape when viewed from adjoining roads and other public places such as parks and community facilities. I am satisfied the amended DA meets these objectives.
Similar to the justification provided for height of building, the Applicant again places weight on infill affordable housing bonus provisions at Ch 2 Pt 2 Div 1 of SEPP Housing. The amended DA provides 13.8% of its GFA as affordable rental housing and pursuant to s 16(2) of SEPP Housing (were it to apply) would be eligible for bonus FSR of 27.6% (or 0.69:1). After application of the bonus FSR, the total permissible FSR for the proposal would increase to 3.19:1 and the amended DA would be compliant with this development standard.
Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.
The parties agree, and I am satisfied, that pursuant to cl 6.1 of the BLEP - Acid sulfate soils - the site is mapped within a Class 2 acid sulfate soils area. The Applicant has prepared an Acid Sulfate Soils Management Plan, prepared by Geotechnical Consultants Australia and dated 11 November 2024, and has provided this to the Respondent to fulfil the requirements of cl 6.1(3) of the BLEP. Agreed conditions of consent are imposed to ensure consistency with the Acid Sulfate Soils Management Plan.
The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the BLEP - Earthworks. The Applicant has provided a Structural Analysis Letter prepared by M & G Consulting Engineers and a Geotechnical Investigation Report prepared by Geotechnical Consultants Australia Pty Ltd. I am satisfied the matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.
The parties agree, and I am satisfied, that pursuant to cl 6.3 of the BLEP - Stormwater and water sensitive urban design - the amended DA is supported by stormwater plans prepared by Arise Consulting Engineers. Consequently, I am satisfied that those matters set out at cl 6.3 have been app appropriately addressed. Agreed conditions of consent are imposed to ensure consistency with the stormwater plans.
The parties agree, and I am satisfied, that pursuant to cl 6.7 of the BLEP - Airspace operations - the site is identified as being situated within the 51m inner horizontal surface - Obstacle Limitation Surface Map. Notwithstanding this, I am satisfied that cl 6.7 does not apply to the amended DA as the proposal does not seek to penetrate the Obstacle Limitation Surface. Agreed conditions of consent ensure compliance with the requirements of Sydney Airport Corporation Limited.
The parties agree, and I am satisfied, that pursuant to cl 6.8 of the BLEP - Development in areas subject to aircraft noise - the site is situated within Australian Noise Exposure Forecast (ANEF) Contour 20. The Applicant has provided an Acoustic Impact Assessment prepared by Koikas Acoustics. The assessment provides recommendations for noise attenuation measures and confirms that the proposed residential uses are capable of meeting the requirements of Australian Standard AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction. Agreed conditions of consent are imposed to ensure consistency with the recommendations of the Acoustic Impact Assessment.
The parties agree, and I am satisfied, that pursuant to cl 6.9 of the BLEP - Active street frontages - the site is identified as "Active street frontage" on the relevant Active Street Frontages Map. The proposed ground floor has been designed to ensure that the building presents an active street frontage as commercial and retail functions, satisfying the requirements of cl 6.9.
The parties agree, and I am satisfied, that pursuant to cl 6.10 of the BLEP - Design excellence - the site is identified on the relevant Design Excellence Map. Accordingly, the DA was referred to the Respondent's Design Review Panel on 2 November 2023. The terms of cl 6.10(5) require the consent authority to take into account the findings of the Design Review Panel, while cl 6.10(4) sets out a range of matters that are to be considered when assessing the DA. I am satisfied the amended DA exhibits design excellence in the terms required by cl 6.10. Conditions of consent are imposed to ensure design integrity is maintained during design development and construction.
The parties agree, and I am satisfied, that pursuant to cl 6.11 of the BLEP - Essential services - the amended DA will be appropriately serviced by essential services. The site is currently serviced and will be upgraded where required.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Detailed Site Investigation (DSI), prepared by Geotechnical Consultants Australia Pty Ltd, which concludes that the site can be made suitable for the proposed development and commercial land use. Additionally, the Applicant has provided a Remedial Action Plan (RAP), prepared by Geotechnical Consultants Australia Pty Ltd, which specifies measures to make the site suitable for the proposed development. Agreed conditions of consent are imposed to ensure the recommendations and measures of the DSI and RAP are complied with.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1375585M_03, dated 4 October 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).
Pursuant to the provisions of the EPA Reg, the Applicant's architect, Kann Finch Redstone (and its nominated architect Mr Stephen Jamison - NSW registered architect 5108) has prepared a Design Verification Statement dated 4 November 2024, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the ADG have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.
Additionally, and pursuant to ss 145 and 147 of SEPP Housing, I am satisfied the DA was referred to the Respondent's Design Review Panel, and its advice considered in the assessment of the DA (as amended).
Finally, pursuant to Ch 2, Pt 2, Div 1 of SEPP Housing (as at the date the DA was lodged), which deals with affordable housing, I am satisfied that agreed conditions of consent are imposed to require that for a period of at least 15 years from the date of the issue of any occupation certificate, the relevant component of the amended DA will be used for affordable housing and will be managed by a registered community housing provider.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.
Pursuant to s 2.119 of SEPP Infrastructure, the site is adjacent to Gardeners Road and O'Riordan Street, which are both identified as classified roads. The amended DA retains vehicular access at the south-western corner of the site from O'Riordan Street as existing. No new vehicular access is proposed to the site. The amended DA is supported by a Traffic and Parking Impact Assessment prepared by Henson Consulting, which confirms the projected traffic and parking generation will not place unreasonable strain on the local road network.
Pursuant to s 2.120 of SEPP Infrastructure, the site is adjacent to classified roads and the amended DA proposes residential accommodation. Accordingly, the Applicant has provided an Acoustic Impact Assessment prepared by Koikas Acoustics addressing the requirements of s 2.120 and confirming that the acoustic treatment of external openings will provide appropriate noise mitigation for residential uses. Agreed conditions of consent are imposed to ensure implementation of the recommendations in the Acoustic Impact Assessment.
The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been appropriately taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
[2]
Notes
The Court notes that:
1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.
2. The Applicant has lodged the amended DA with the Court on 15 November 2024.
[3]
Orders
The Court orders that:
1. Leave is granted to the Applicant to amend Development Application DA-2023/225 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $35,000 within 28 days of the date of these orders.
3. The Applicant's written request, pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BLEP, is upheld.
4. The Applicant's written request, pursuant to cl 4.6 of the BLEP, seeking to vary the development standard for floor space ratio (FSR) as set out at cl 4.4 of the BLEP, is upheld.
5. The appeal is upheld.
6. Consent is granted to Development Application DA-2023/225 (as amended) for the demolition of existing structures and construction of a mixed-use (shop top housing) development including commercial premises on the ground level, infill affordable housing (Level 1), residential units (Levels 2-8) and two levels of basement parking, at 609 Gardeners Road, Mascot, subject to the conditions of consent at Annexure A.
[4]
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: 20 December 2024