Vanis Holdings Pty Ltd v Bayside Council

The proposed development

1. As the proposed development comprises a number of different components, the amended DA is described in some detail in the Amended Statement of Facts and Contentions prepared by the Respondent (Exhibit 2), in the following manner: 1. Consolidation of the western part of the site (251-269 Bay Street) with the eastern part of the site (271-275 Bay Street). 2. Demolition of all existing structures on 271-275 Bay Street, including the service station and mechanical workshop and removal of underground petroleum storage tanks. 3. Removal of existing driveway crossings on Queens Road and Bay Street, with the exception of the existing driveway crossing at the end of the site on Queens Road that will be maintained for the car park exit. Entry to the car parking areas on the eastern part of the site will now be via the existing driveway from Crawford Road on the western part of the site. 4. Construction of an 11 storey mixed use development with basement parking on the eastern part of the site (271-275 Bay Street) comprising: 1. 3 basement levels as follows: 1. Basement Level 3: 34 residential car parking spaces including 6 spaces in a tandem format, 1 adaptable space and 1 accessible space, 7 bicycle storage spaces, 1 motorcycle space, residential storage, services, lifts and fire stairs. 2. Basement Level 2: 30 residential car parking spaces including 1 accessible space and 2 adaptable spaces, 4 motorcycle parking spaces, residential storage, services, lifts and fire stairs. 3. Basement Level 1: split into the following three areas containing 21 car parking spaces in total - 1. Basement 1 (B1-A): containing 9 visitor spaces; 2. Basement 1 (B1): containing 3 visitor spaces, hydrant sprinkler storage tank, grease arrestor, fire hydrant & sprinkler pump room, comms room, residential garbage storage, fire stairs and ramp to ground level; and 3. Basement 1 (B1-B): containing 9 spaces (1 visitor and 8 commercial), lobby and lifts. 1. Ground Level A: 4 commercial tenancies, substation, utility and service rooms, toilets for the commercial tenancies, main lobby, lifts, fire stairs, residential and commercial waste holding rooms, bulky residential storage room, shared residential loading bay/garbage collection at the rear of the site, and commercial loading bay and 2 electric vehicle (EV) charging points on Queens Road. 2. Ground Level B: 8 car parking spaces (including 1 car share space), 2 bicycle spaces and 1 motorcycle space, which will only be accessible from the existing building on the western part of the site. Stair access for pedestrians to the main lobby at Ground Level A is also provided. 3. Level 1: 2 x 1 bedroom units, 3 x 2 bedroom units and void to car parking area at Ground Level B below. Access is provided to the communal open space area in the existing building on the western part of the site. 4. Level 2: 8 - 2 x 1 bedroom units, 4 x 2 bedroom units and 1 x 3 bedroom unit on each level. 5. Level 9: 1 x 1 bedroom unit, 6 x 2 bedroom units and 1 x 3 bedroom unit, with the living/kitchen/dining and private open space (POS) areas of Unit 4, the bedroom, bathroom and part of the POS of Unit 6 and the whole of Unit 5 extending over western boundary. 6. Level 10: 1 x 2 bedroom unit, 3 x 2 bedroom units and 1 x 3 bedroom unit, with the living/kitchen/dining and POS areas of Unit 1, the bedroom, bathroom and part of the POS of Unit 3 and the whole of Unit 2 extending over the western boundary. Communal open space accessed via the lobby is provided at this level. 7. Materials and finishes including pre-cast concrete, glass balustrades, painted render, concrete balconies and bronze metal cladding. 1. Alterations and additions to the existing mixed-use building on the western part of the site (251-269 Bay Street) comprising the following: 1. Ground Level A: demolishing part of the shared wall to connect the parking areas on the eastern and western part of the site, separated by a sliding fire door. 2. Ground Level B: providing a new ramp for access to the parking area from Crawford Road. 3. Level 1: connecting communal open space area on the western part of the site to the Level 1 lobby on the eastern part of the site, replacing glass louvres on the northern and western elevations with concrete upstands, new louvres and glazing, and additional infill to the Bay Street frontage of 6 units (GFA of 45.7m2) 4. Level 7: additional infill to eastern side of the penthouse (GFA of 30.2m2) 5. Level 8: additional infill to eastern side of the penthouse (GFA of 24m2) 6. External materials and finishes to match proposed building on the eastern part of the site. 1. Stormwater associated with the new building on the eastern part of the site will be discharged to the approved infiltration tanks on the western part of the site.

The site and its context

1. The site comprises five lots identified as follows: 1. Lot 10 in DP 1147577, otherwise known as 251-269 Bay Street, on which a nine storey mixed use development stands today, with residential apartments located over ground floor retail uses. 2. Lots A, B and C in DP 376377 and Lot A in DP 171312, otherwise known as 271-275 Bay Street. These lots are currently occupied by a number of two-storey commercial development, including a service station that addresses the intersection of Bay Street and Queens Road.
2. The area of these lots, when combined is 3,872.5m2.
3. The site is bounded by Bay Street to the north, Queens Road to the east and Crawford Road to the west. To the south, the site adjoins two existing, four-storey residential flat buildings.
4. The proceedings commenced with an onsite view, during which the Court, in the company of the legal representatives, the Applicant and experts, heard an oral submission from an objector to the proposed development.
5. The objector is a resident of the area, and is also a member of the Bayside Council Local Planning Panel. His written submission appears at Exhibit 3, folios 186-187.
6. The Court was also taken onto the rear of the site at 271-275 Bay Street, accessed via a driveway connecting to Queens Road, and was asked to observe the interface between the subject site and existing residential flat buildings at Nos 1 and 2 Queens Road, including the location of windows and rooms served by those windows.
7. The Court was also taken into the basement, out to the Level 1 communal open space, to the uppermost unit of the existing residential flat building at 251-269 Bay Street, and on to the rooftop to observe the location of proposed alterations and additions to the existing development, and to observe existing medium and high rise development in the area.
8. Finally, the Court was taken into Moate Avenue and Princess Street to once again observe the existing interface between medium and high rise development, and adjoining low density residential in the R3 Medium Density Residential zone.
9. The site is located in an area identified as a MU1 Mixed Use zone, according to the Bayside Local Environmental Plan 2021 (BLEP) in which residential flat buildings, shop top housing and commercial premises are permitted with consent, where consistent with the following objectives: • 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.

Planning and urban design

1. A number of contentions are pressed by the Respondent in respect of height, bulk, scale, character and the like, and the impacts that arise as a consequence of those aspects of the proposed development. As such, many of the contentions inter-relate.
2. The Court was assisted in its consideration of those contentions dealing with planning and urban design by the evidence of the following experts who conferred in the preparation of a joint expert report (Exhibit 8): 1. Ms Kerry Gordon (planning) and Ms Gabrielle Morrish (urban design) on behalf of the Respondent, and 2. Mr Anthony Betros (planning) and Mr Alan Cadogan (urban design) on behalf of the Applicant.
3. A primary concern of the Respondent is the height of the proposed development.
4. While it is commonly held that the proposed development exceeds the height permitted on the site, the parties dispute which height standard applies.
5. The Respondent contends the applicable standard is 28m when the relevant map at cl 4.3(2) of the BLEP is properly understood. Furthermore, despite the fact that the site is located within an area shown on the map as 'Area 2', in which additional height can be obtained, the development does not qualify for the bonus as the land on which development is proposed is not 2,000m2 in area.
6. As such, the bonus of 6m in height, available at cl 4.3(2A)(b) of the BLEP for sites in Area 2, cannot be claimed by the Applicant.
7. Even if the Court found the additional height at cl 4.3(2A)(b) was available to the Applicant, the Respondent's position is that the written request prepared in support of the height exceedance should fail because the proposal is not for a demonstrable public benefit, as required by cl 4.6(8)(ba) of the BLEP.
8. For its part, the Applicant submits that when the lots comprising the consolidated site are combined, a site area of 3,873m2 clearly exceeds the threshold of 2,000m2 and so qualifies to take the advantage of the 6m height bonus.
9. Development of such a height cannot be regarded aberrant because such a height has been identified on the relevant height of buildings map at cl 4.3(2) of the BLEP within the area marked 'Area 2'. As such, the height nominated on certain land within Area 2 must be a height that is consistent with objective (c) of cl 4.3 because the objective provides for nominated heights that will provide an appropriate transition in built form and land use intensity.
10. Furthermore, exceptions to the height standard of 34m, and to the FSR standard of 3:1 are both contemplated by the provisions at cl 4.6 of the BLEP because the exclusionary effect of subcll 4.6(8)(ba) and (bd) are both qualified to set aside the exclusion where a demonstrable public benefit is found to result.

Height is exceeded

1. The Applicant relies upon a written request authored by ABC Planning in accordance with cl 4.6 of the BLEP dated May 2024 (the height request) (Exhibit D) seeking an exception to the height standard.
2. The height request seeks an exception to the development standard at cl 4.3(2A) of the BLEP, that permits development to a height of 34m, to propose development with a height of 37.4m, or 3.4m above the height standard.
3. The height request states the majority of the exceedance is a 2m space immediately below the uppermost ceiling - above which sits the roof slab, services and lift overrun which accounts for 1.2m of the exceedance.
4. However, before I consider the height request, I must first consider whether the development application before the Court is eligible for the 6m height bonus on which the written request is premised.

The height standard of 34m applies

1. As stated earlier, the relevant map at cl 4.3(2) of the BLEP provides for a height standard on the site of 28m. However, on the same map, the site is also identified as being within an area identified as 'Area 2', in which the height of a building may exceed the height of 28m by 6m, but only if the building is on land having an area of at least 2,000m2 (subcl 4.3(2A)(b)).
2. The Respondent argues that the site on which the Applicant seeks the benefit does not achieve the threshold of 2,000m2 to which the height bonus applies, as the lots comprising 271-275 Bay Street, when aggregated, have a total area of just 1,241m2.
3. Furthermore, when the text of cl 4.3(2A) is read carefully, the bonus height is directed to "a" building, and not buildings. In this case, the new building is, according to the Respondent, located discretely on land that does not rely upon Lot 10 at 251-269 Bay Street in a manner that would absorb the area of that site in the calculation of site area on which the building is proposed.
4. As such, the site does not qualify for the additional height bonus.
5. In my view this argument must be set aside when the proposal itself is understood. The development is not discrete to the four lots comprising 271-275 Bay Street. The development relies upon Lot 10 in a number of respects that are outlined in more detail at [50]-[51].
6. However, the most conspicuous aspect of the proposal that most cogently refutes the Respondent's argument in this respect are the very levels of the proposal that provoke contest as to the height bonus in the first place.
7. Levels 9 and 10 encroach some 17m into Lot 10, requiring structural reinforcement to the existing Brighton Shores building, in terms set out in the structural engineering report prepared by Mance Arraj dated 5 May 2024 (Exhibit F). The proposal is not discrete to those lots comprising 271-275 Bay Street.
8. The Applicant submits that site area, for the purposes of determining whether the proposed development is on land having an area of at least 2,000m2, must be calculated in the manner in which floor space ratio and site area are to be calculated, according to cl 4.5 of the BLEP.
9. Subclause 4.5(3)(b) relevantly provides: (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be - … (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
10. The development is proposed on Lots A, B and C in DP 376377 and Lot A in DP 171312, comprising 271-275 Bay Street and on Lot 10 with which at least one Lot comprising 217-275 Bay Street has a common boundary and on which development is being carried out.
11. That said, the development that is proposed to be carried out must be significant development, in terms set out at cl 4.5(6) of the BLEP, which relevantly provides: (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
12. Absent a definition of the term 'significant development' in the Dictionary of the BLEP, the Applicant relies on authorities that it submits reached conclusions that significant development was achieved by, in effect, less than that proposed in the circumstances of this case.
13. The Applicant submits that significant development is proposed to the lot at 251-269 Bay Street by reference to: 1. The BCA Report (Exhibit G) which proposes fire sprinkler drenching and the upgrade of hydrants; 2. Agreement between the traffic experts that the Crawford Road car park entry is to be used as the sole entry into the subject site, and will be the only means of access to the Ground Level B parking fronting Queens Road; 3. Aspects of the development identified by Mr Betros at par 90 of the joint expert report and, additionally, those summarised by Ms Gordon at par 135 of the joint report, include: 1. Additional FSR within, and over, Brighton Shores. 2. Removal of glass louvres to street facing balconies, and replacement with concrete upstands and new louvres, and partial infill of balconies, to Level 1 fronting Bay Street. 3. Vehicular access to the site is wholly dependent upon use of the existing car park entry located on Crawford Road. 4. Communal open areas are shared between the existing and new components of the development. 5. Lighting upgrades, photovoltaic panels and changes to façade materials are proposed to the existing Brighton Shores. 6. Two car share vehicles are proposed to service the whole development. 1. Structural upgrade to Brighton Shores is required, the extent of which is described in the Structural Engineering Report prepared by Mance Arraj Engineers, dated 5 May 2024 (Exhibit F).
14. The proposed development on the site at 271-275 Bay Street is not merely positioned adjacent to or alongside the existing building known as Brighton Shores, but is 'stitched in' to the existing building at a number of levels, including: 1. the basement levels, in terms of both physical connection and reliance upon use of the carpark entry on Crawford Road to gain access to parking at Ground Level A and B of 271-275 Bay Street. 2. Pathways and access to communal open spaces on Levels 1 and 10 of the proposal, with residents and visitors able to move with relative ease between the existing and new aspects of the development. 3. New structural supports required on Levels 6-9 to support new floor space on Levels 9 and 10 that extends beyond the existing lot boundary of 271-275 Bay Street to overhang and sit atop Brighton Shores.
15. On the basis of the extent of development described at [50] and [51], I conclude there is significant development proposed on the site at 251-269 Bay Street. Accordingly, it is appropriate to consider the area of Lot 10 in the calculation of site area.
16. What flows from this conclusion is that the lots should be considered together for the purposes of calculating the site area and that it is therefore proper to consider the site area, to which the provision at cl 4.3(2A)(b) of the BLEP is directed, to be greater than 2,000m2.
17. Having found the site area is therefore 3,873m2, it also follows that the height bonus at cl 4.3(2A)(b) applies to permit a height of 34m on the site.

The public benefit

1. The second pre-condition to the consideration of the height request is whether or not the development is for a demonstrable public benefit. This is because cl 4.6(8) excludes development consent for development that otherwise contravenes cl 4.3(2A), unless the development provides such a benefit.
2. While the height request prepared by Mr Betros argues that the public benefit required by cl 4.6(8) of the BLEP is demonstrated in the two EV charging stations proposed to Queens Road, Mr Betros' oral evidence is that the public benefit sought by cl 4.6(8) is a public benefit of a kind that derives from the development, and not from the exceedance of the height standard itself.
3. The Applicant submits that the full gamut of public benefit is demonstrated by the following: 1. The provision of a 10-12m loading zone on Queens Road, which the traffic experts agree is a public benefit due to the limited number of loading zones in the area. 2. The removal of the driveways and kerb crossings on Queens Road and Bay Street as a consequence of the demolition of the service station, which permits greater on-street parking. As it is put by the traffic experts at p 7 of Exhibit 7, three existing driveways on Queens Road are replaced by only one. 3. A reduction in traffic on Bay Street, acknowledged by the traffic experts as a consequence of the demolition of the service station (Exhibit 7, pars 2.19.1 and 2.19.2), that improves the safety, efficiency and ongoing operation of Bay Street (see par 2.19.3). 4. Use of the existing driveway entry on Crawford Road as a driveway servicing the development, in lieu of multiple driveways (see Exhibit 7, 2.3.2). 5. Remediation of the site, including the removal of the service station that Dr Swane characterises as a source of contamination. 6. EV Charging stations on Queens Road, consistent with the Electric Vehicle Charging Infrastructure (EVCI) Policy dated April 2024, published by the Respondent (EV Policy) (Exhibit 12) that regards such a facility as a public benefit. 7. Provision of two on-site car share parking spaces.
4. The Applicant submits that the scope and nature of the public benefit deriving from the development sets aside the exclusion at cl 4.6(8) and permits consideration of the exception provisions at subcll (3) and (4).
5. The Respondent disputes that the EV charging stations can be described as a public benefit when the size, location and infrastructure needs of those charging stations is undefined. Likewise, there is no management structure or operational or procurement plan that would determine responsibilities, costs or availability.
6. Furthermore, the Respondent submits that EV charging stations may have the effect of displacing on-street car parking as the spaces favour electric vehicles over non-electric vehicles. As such, the proposal may represent a disbenefit to the public that may not be supported by the Respondent's local traffic committee to which such a proposal would be referred.
7. The Applicant relies on the EV Policy which, at Section 1, confirms "Bayside Council is committed to supporting the uptake of electric vehicles (EVs) in the Bayside Local Government Area".
8. Furthermore the site considerations at Section 3.4 of the EV Policy suggest no incompatibility or unsuitability of the proposed location of the EV Charging stations, a structure for fees and charges is provided for at Section 3.6 of the EV Policy, and licence requirements at Section 3.9.
9. I accept those aspects of the development listed at [57] constitute a demonstrable public benefit. In particular, when regard is had to the EV Policy, I note the objectives include to provide guidelines for the establishment, operation, management, and removal of EVCI, and to clearly outline the roles and responsibilities of third party providers and Council in relation to the establishment, operation, management and removal of EVCI.
10. Furthermore, I also note the EV Policy, in the form adopted April 2024, removes reference to a public procurement process in favour of an assessment of applications made to Council, as is the case here. Finally, the nomination by Council of sites from a list of pre-determined locations is also struck. Presumably this is because the site considerations at Section 3.4 of the EV Policy apply, with which I find the proposed location consistent.
11. However, the public benefit does not derive from the EVCI alone, in my view. The development consolidates a plethora of vehicular access points to provide for public loading facilities in the form of a 10-12m loading zone on Queens Road, and concentrates vehicular movements on the site by adopting the existing driveway entry on Crawford Road as the sole entry servicing the development. In so doing, the traffic experts agree the exit-only function of the driveway to Queens Road has the added benefit of obviating the need for right turn movements from Bay Street into Queen Street which they regard as an improvement and safe outcome.

Whether compliance is unreasonable or unnecessary

1. The height request asserts compliance with the height standard is unreasonable or unnecessary because the proposed development is consistent with the objectives of the height standard, notwithstanding the non-compliance.
2. The objectives of the height standard are as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that building height is consistent with the desired future character of an area, (b) to minimise visual impact of new development, disruption of views, loss of privacy and loss of solar access to existing development, (c) to nominate heights that will provide an appropriate transition in built form and land use intensity.
3. In summary, the height request asserts the objectives are achieved in the following ways: 1. In respect of objective (a): 1. the intent of the height and FSR controls appear to favour sites that are greater than 2,000m2, such as the subject site, with an FSR of 4:1 and a height of 34m. Further variation to that height is also contemplated by cl 4.6(8)(ba) of the BLEP. 2. The proposed 10-11 storey building is consistent and compatible with the scale of development envisaged by the 34m height limit on large sites, such as 10-12 storey buildings to the north east and that approved at 295-301 Bay Street that, together, contributes to a high rise character along Bay Street, Moate Street and Princess Street. 3. Those sites in the area on which development is limited to one or two storeys are underdeveloped when the allowable height of 28m, that would permit building heights of between 8 -12 storeys is taken into account. 4. Additionally, the written request considers the potential for future development to seek the additional height and FSR bonus under Pt 2, Div 1 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) that may result in development with a height of 37.57m on smaller sites or 44.2m on sites greater than 2,000m2, and FSR of between 3.9:1 and 5.2:1. In such a scenario, the proposed development would be compatible or considerably lower in height than development exercising the bonus in the Housing SEPP. 5. The provision of two on-street electric vehicle (EV) charging stations is not irrelevant to an assessment of the variation to the 34m height standard, as it enables variation to the standard where a demonstrable public benefit results. The development proposes those charging stations as public facilities, delivering a public benefit in that the proposed charging stations are fast-charging outlets, increase the prevalence of EV infrastructure, which in turn drives greater uptake of EV vehicles that are associated with a reduction in carbon emissions. 1. In respect of objective (b), an assessment of the visual impacts, solar access, views and privacy resulting from the proposal concludes that amenity impacts are so minimised that no unreasonable impacts arise. This assessment is summarised as follows: 1. The visual impact of the proposal is consistent with that of existing surrounding development because the height is consistent with residential flat buildings and shop top housing in the area of 8-12 storeys in height on the northern side of Bay Street, and on the site itself at 251-269 Bay Street. 2. Diagrams depicting the overshadowing demonstrate the additional height of the proposal does not impose any unreasonable overshadowing when the allowable height of 34m is considered. Two hours of solar access is retained to apartments to the south of the site, between 1pm-3pm in mid winter, and the written request asserts no shadow impacts are discernible beyond that of a compliant building envelope. 3. No identified views will be adversely impacted by the proposal. 4. The additional height does not result in any adverse privacy or acoustic impacts by virtue of the uppermost levels being setback from the southern boundary, and the communal open space at Level 10 has a planted perimeter to prevent overlooking of properties in Queens Road and Crawford Road. 1. In respect of objective (c), it is likely a strategic objective that informs the allocation of different height limits across the Local Government Area. However, if development was proposed on the site with a uniform height of 34m, the proposal would remain compatible with existing development in Bay Street yet overshadow properties to the south to a greater extent. As proposed, the development complies with the FSR permitted on the site, and is compatible with other tall forms of development on both sides of Bay Street.

Overshadowing

1. The architectural plans (Exhibit A) contain a number of drawings depicting solar access to the site, and surrounding development on Crawford Road, Queens Road and Bay Street.
2. Those drawings include sun eye diagrams depicting the solar path from 9am - 3pm (drawings DA-730 - DA-733), and a further series of sun eye diagrams comparing the existing development, development that complies with the height standard of 34m, and the proposed development that exceeds the height standard (drawings DA-760 - DA-773).
3. Ms Gordon's written evidence is that shadow impact occurs in apartments at Nos 1 and 2 Queens Road.
4. In his oral evidence, Mr Betros accepts impacts do arise on Nos 1 and 2 Queens Road from the additional height above 34m, notwithstanding his statement at [68(2)(b)], but considers those impacts minor. In mid winter, such impacts include: 1. At 9.30am and 10.30am, overshadowing to both No 1 Queens Road, and Nos 6-10 Crawford Road occurs. 2. Between 11am-3pm, balconies and windows to living and dining areas of apartments in No 2 Queens Road are affected.
5. Despite these impacts, Mr Betros asserts the impact would be worsened if floor space was distributed along the uppermost level of the existing building. While such an arrangement may remove the exceedance of the 34m height standard, the effect of overshadowing on properties to the south would be greater than that depicted in the sun eye diagrams.
6. Instead, the arrangement of built form as proposed results in a better outcome in terms of overshadowing and in visual bulk and scale. I will return to this second point of visual bulk and scale later at [102]-[113].
7. In response to the first point, the Respondent submits that even if the overshadowing is worsened by such a distribution, it would be imposed by an envelope anticipated by the controls.
8. Ms Gordon identifies, by reference to both the existing and proposed built form envelopes, apartments to the rear of No 1 Queens Road that are affected by self-shadowing and by the proposal to conclude the impact is unacceptable. Ms Gordon considers the alternative whereby the proposed development continues at the height of the existing envelope on 251-269 Bay Street in the eastern portion of the site.
9. I understand this to support Ms Gordon's evidence that a built form may be conceivable that differs from that of the proposed and with impacts that might be acceptable, if overshadowing is carefully considered. Likewise, Ms Morrish identifies opportunities for additional GFA to be achieved by addition of floor space across more of the existing building rather than the concentration proposed to the east.
10. A similar assessment to that at [76] is made by Ms Gordon of west facing apartments at No 2 Queens Road. It concludes overshadowing occurs between 12.30pm and 3pm in mid winter. Relevantly, Ms Gordon observes that shadow impact would also occur between 9am-11.30am by a proposal of 28m in height, reducing solar access to those balconies to less than 2 hours.
11. While Ms Gordon's assessment is unquestionably detailed, it does not make the comparison by reference to a compliant envelope and the proposed envelope, but instead compares the existing condition with the proposed development to conclude the impact is unreasonable.
12. Mr Betros relies on the planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082, cited at Part 5.2.4.5 of the Rockdale Development Control Plan 2011 (RDCP) as evidence that some shadow impacts are, in essence, inevitable given the strategic decision to locate a height limit of 34m and FSR of 4:1 to the north of the R4 zone in which a height limit of 14.5m and FSR of 1:1 applies. Notwithstanding such inevitability, Mr Betros considers the retention of a minimum of 2 hours sunlight to adjacent properties to validate the design approach taken on the site.
13. I accept the Applicant's position that the concentration of bulk and height to the east results in a greater proportion of shadow, from both the compliant and non-compliant envelope, falling within the road reserve for a longer duration than would otherwise be the case if the bulk was not so concentrated. In the alternative scenario, where the bulk is allocated across the top floor of the existing development, a greater proportion of overshadowing would be imposed on window openings and communal open space to No 1 Queens Road, and Nos 4 and 6-10 Crawford Road for a longer period of time than is proposed by the form of development proposed.
14. Comparing the sun eye diagrams on drawings DA-767 - DA-773 reveals, in my assessment, the following: 1. At 9am, the extent of overshadowing on the communal open space of Nos 6-10 Crawford Road from the proposed development exceeds that of a compliant envelope. However, the difference appears to be limited to the extent of roof overshadowed, and not the natural ground surface in the rear yard of that property that is overshadowed by a compliant envelope. 2. At 9.30am the extent of overshadowing on the same communal open space is virtually identical to that of a compliant envelope. 3. From 10am onwards, the geometry of the uppermost level in the proposed development is angled differently to the compliant envelope such that the degree of overshadowing from the proposed development appears lessened, permitting greater solar access to the communal open space of properties to the south. 4. At 11am, 12 noon and 12.30pm, a greater extent of window openings and balcony to No 1 Queens Road are visible in the proposed development than in the compliant envelope. 5. At 12 noon, the proposal increases solar access to north facing windows on No 1 Queens Road when compared to a compliant form. 6. At 12.30pm, the proposed development imposes a greater level of overshadowing to a portion of the west facing balconies at the lower level to No 2 Queens Road that I consider to be negligible when compared with the compliant envelope.
15. The objectives of the height standard, at cl 4.3(1)(c) seeks the loss of solar access to existing development to be minimised, and not avoided altogether. The objective does not seek for solar access to be preserved or maintained, but to be minimised.
16. I am satisfied, on the basis of the sun eye diagrams, that the concentration of additional GFA to the east and the geometry of the topmost level serve to minimise the loss of solar access to existing development to the south and east of the subject site.
17. Furthermore, I accept Mr Betros' evidence that care has been taken to ensure the provisions of Part 5.2.4.5 of the RDCP are achieved where possible. Where this has not been achieved I also accept solar access of less than 2 hours is likely to be the result of a compliant envelope, and is largely limited to apartments on the lower levels of adjacent properties that are inherently more vulnerable to overshadowing.

Privacy and solar access to proposed apartments

1. Ms Gordon's initial assessment of apartments receiving solar access is set out at pars 357-363 of the joint expert report, with the result being that somewhere between 55% and 59% of apartments receive a minimum of 2 hours of solar access to the living room and PoS.
2. Ms Gordon's later oral evidence is that once the amended plans at [11] are taken into account, somewhere between 63.6% and 66.7% of apartments receive the minimum 2 hours sunlight.
3. The lower figure is arrived at by taking into account development to the northern side of Bay Street, assuming a height of 28m. This is because Ms Gordon, having considered the lot pattern on that side of Bay Street, concludes it unlikely that consolidation will occur to take up the benefit of the height bonus.
4. The higher figure is greater because of amendments in the south east of the site that adopt a sketch prepared by Ms Morrish at par 220 of the joint expert report. The amendments are said to now provide 2 hours sunlight to apartments 503, 603, 703, 803 and 903.
5. I note here those same amendments give rise to privacy concerns identified by Ms Gordon and Ms Morrish to which the amendments at [11(4)] are directed.
6. When the separation between the balcony of those apartments at [89] is measured to the south facing balcony of apartments in the existing building, the distance is between 7m-11m.
7. Ms Gordon and Ms Morrish consider overlooking between those balconies to be exacerbated by the difference in level between floor plates of the existing and new development that is commonly held to be a result of the requirement for additional height between floors in the National Construction Code (NCC) from the requirement of the Building Code of Australia at the time Brighton Shores was constructed.
8. In essence, it is helpful to state here that the floor-to-floor heights in the new built form on 271-275 Bay Street do not align with those in the existing development due to amendments in the NCC that are described at p 15 of the written request to include waterproofing, acoustic, avoidance of hobs and the like.
9. It is as a consequence of this misalignment of levels, and close proximity of apartments that are at right angles to each other, that gives rise to the concern at overlooking.
10. Those screening measures initially shown on the architectural plans either result in poor amenity or can be easily removed, according to the Respondent.
11. Whether this is the case or not, the screening later depicted on plans at Exhibit FF, and provided to the Court after the close of proceedings in plans cited at [12], and about which the parties deferred to the Court's experience, are in my view, acceptable.
12. The balconies in question are, in the case of those within the existing Brighton Shores development, dimensioned at 800mm on levels 3-5, serving bedrooms and not living spaces other than on Level 7, and with new blade walls that obstruct a view to the balconies serving Apartments 303, 403, 503, 603 and 703.
13. The fundamental change in geometry in the new development proposed at Level 8 and 9 removes the issue from consideration to Apartments 803 and 903.
14. An upstand of 1.6m in height is proposed to the west facing balconies of Apartments 303, 403, 503, 603, 703, 803 and 903 that provides additional privacy from the apartments in the existing Brighton Shores development.
15. The solar access summary at drawing DA-733 has been updated from that in Exhibit A plans to reflect the effect of the 1.6m upstand recording, for example, that Apartment 403 does not now achieve 2 hours of sunlight. When this non-conformity is factored into solar access calculations, 69.7% of apartments within development primarily located on 271-275 Bay Street receive sunlight for 2 hours or more. When all apartments in the development on the site comprising 251-269 Bay Street and 271-275 Bay Street, are considered, a total of 75.8% of the apartments receive sunlight for 2 hours or more.
16. While I consider both outcomes acceptable, the development the subject of the development application comprises development on 251-269 Bay Street and 271-275 Bay street. Apartments within the existing Brighton Shores building cannot be excluded for reasons at [96]-[97]. Furthermore, as the proposal comprises development of a kind summarised at [50] and [51], I consider the more appropriate calculation to be that 75.8% of the apartments receive sunlight for 2 hours or more.

Bulk, scale and character

1. As mentioned briefly at [74], the Applicant submits that aggregating built form to the east of the site, and in the manner shown, not only results in a better outcome for overshadowing to surrounding properties, but also in terms of the bulk, scale and character emerging in Bay Street.
2. This is because it is appropriate for the greater height to be concentrated towards the east, in the direction where the Area 2 extends, and away from the R3 Medium Density Residential zone where a height standard of 8.5m applies.
3. Doing so effects a transition from taller development towards the east, to lower development in the west, which accords with the relevant height of buildings map at cl 4.3(2).
4. Likewise, the proposed height of development is greatest to the north, fronting Bay Street, and reduced to the south where the site adjoins the R4 High Density Residential zone with a height standard of 14.5m.
5. The proposal does not adopt the 'ziggurat' form that is cautioned to be avoided, according to Objective 3F-1 of the Apartment Design Guide (ADG), but instead adopts the single step that is preferred.
6. When the demarcation of zoning, height and FSR controls in the immediate vicinity of the site is considered, Mr Betros believes such an arrangement, including such a disparity of height and density, must be itself a deliberate and strategic act by the Respondent. Add to this the northern orientation of the site, relative to the surrounding area and the controls appear even more deliberate.
7. Ms Morrish's oral evidence is that the site marks the edge of a town centre and also marks the end of the MU1 zone to the west. As such, height may be appropriate on this site. However, as stated earlier, overshadowing that results from such height can be moderated if applied differently to the concentration proposed.
8. The height of the proposal compared to the existing residential flat building opposite the site on the northern side of Bay Street, with which the site is visually paired, according to Mr Cadogan, is somewhere between 2.76m and 4.76m, depending on whether it is measured from the uppermost lift overrun, as initially proposed by Mr Cadogan, or from the parapet fronting Bay Street that Ms Morrish believes would be the more likely feature evident to a passerby.
9. The overshadowing that does result is a consequence of an inappropriate building separation to the south that should be about more than privacy or solar access alone.
10. It is Ms Morrish's opinion that as the proposal does not step back further from the southern boundary at the upper levels, but rises to the 28m height limit, there is no attempt to transition to the R4 zone to the south to which a lower height limit applies. Equally, such a transition should observe an additional setback of 3m to accord with Figure 3F-5 of the ADG in circumstances where residential apartment development is proposed adjacent to a different zone as is the case here.
11. Ms Morrish argues, at par 204 of the joint expert report, for the visual bulk and impact of the essentially sheer blank southern wall to be managed, that the proposed development should observe greater setbacks.
12. In response to the amended plans at Exhibit A, Ms Morrish maintains her opinion that the setback of upper floors from the southern boundary should be greater and that the proposal does not transition appropriately to the scale of development in the R4 zone.
13. According to Mr Cadogan, additional steps in the setback to the southern boundary would only result in a ziggurat appearance so disavowed by Objective 3F-1 of the ADG when such steps occur at level 3 and at the uppermost level.
14. While Ms Morrish does not agree, when the development as a whole is understood, I agree that the proposal steps to form a transition, albeit steeply, as seen in the east elevation re-produced below:
15. Ground floor and Level 1 step to form a setback of between 3m-6m, and appear to also form a podium that is differentiated from the levels above by its form, materials and finish.
16. Levels 2-9 observe a setback that varies between 9m-12m, in accordance with, or exceeding, the guidance provided by Figure 3F.5 of the ADG, in which an additional distance of 3m is considered appropriate where development occurs at a zone boundary, as is the case here. The setback adopted generally exceeds the setback required by the ADG, including the additional 3m required at a zone interface.
17. While Figure 3F.5 does not extend to show further setbacks that may apply at higher, or upper levels, Figure 3F.3 does, and shows a consistent setback for the first four levels, with additional setbacks to side or rear boundaries above.
18. According to Figure 3F.3, ADG guidance, applied to the rear boundary that adjoins the R4 zone, would require a setback of 9m for the first four levels. As stated above, the first four levels that do not have a direct line of sight to No 1 Queens Road vary between 3-12m, but for two balconies that setback 9m.
19. In addition to the setback, the southern elevation is treated so that overlooking to No 1 Queens Road is avoided, presenting what is, in essence, a façade free of openings that could otherwise result in loss of privacy.
20. Accordingly, I consider the loss of privacy to be minimised in the proposal, consistent with objective (b) of the height standard.
21. In further considering the visual impact of the proposal in the Queens Road streetscape, I am of the view that the proposal appropriately balances building separation with the evident decision by the Respondent to provide incentives for height of between double and greater than that permitted in the R4 zone.
22. What may appear an abrupt transition when the controls for height and density are read is further mitigated by tiered landscaping of height within the southern setback presenting to Queens Road.
23. The proposed landscaping comprises canopy trees identified on landscape drawing LA-08 (Exhibit B) as Crow's Ash with an expected height of 20m, and spread of 10m. In addition to these canopy trees, landscape planting is proposed within the 6m setback to the south, at Ground Level A and Level 1, and additional to this within the 9-12m setback when the planting to Level 2 is considered.
24. I accept the Applicant's primary submission, evident in the written request, that objective (c) of the height standard is essentially explanatory of the central purpose of the height standard in terms similar to those shown in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61, at [49]. That is, by fixing different maximum heights of buildings in different areas by means of the height of buildings map, objective (c) of the height standard is not an end in itself, but a means to achieve those objectives at (a), which is to ensure that building height is consistent with the desired future character of an area, and in objective (b) to minimise visual impact of new development, disruption of views, loss of privacy and loss of solar access to existing development.
25. Accordingly, I am satisfied that the written request has demonstrated that objectives (b) and (c) are achieved, notwithstanding the non compliance with the height of 34m.
26. I am also satisfied that the written request demonstrates that objective (a) is achieved, primarily because the proposed built form is consistent with an area undergoing transition, with development in the immediate vicinity being of similar height and number of storeys as is proposed. The development is not isolated to a small site, as is suggested by the experts for the Respondent, but is part of a large site that varies between 9-11 storeys.
27. Whether the height variation between development to the north side of Bay Street is 2.76m or 4.76m, as set out at [109], it is unlikely to render the proposed development inconsistent with the emerging character of Bay Street that is, and will presumably continue to be, distinct from development beyond, given the marked change in height and FSR available to development on sites fronting Bay Street within the narrow strip in which a height standard of 28m applies, but for Area 2 where the bonus of 6m is also available.
28. I accept the Respondent's submission that the existing allotment pattern to the east of the site may result in development of 28m, and not 34m in height. However, I consider the exceedance limited to a small proportion of the subject site, and on a site Ms Morrish characterises as serving to 'mark the edge of a town centre'.
29. As such I am satisfied that the written request demonstrates that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, pursuant to cl 4.6(3)(a) of the BLEP.

Environmental planning grounds are sufficient

1. The written request also sets out environmental planning grounds it considers sufficient to justify the contravening of the height standard, that may be summarised as follows: 1. The height variation will be indiscernible in the high density environment in which it is located, where towers exist today, and where additional towers are approved for development on both sides of Bay Street. The numerical exceedance will sit comfortably in a setting that is undergoing transformation and where heights ranging from 28m-34m can be expected. 2. When the site is approached from the east or west along Bay Street, the height variation will not appear out of character nor excessive but compatible with both the existing and future character of the area. 3. A significant proportion of the exceedance is at the lift overrun within an exceedance that measures 2m in height to the underside of the ceiling to the topmost level, across an area that represents around 13% of the site. 4. The impact arising from the exceedance on views, privacy, overshadowing and the like are insignificant or inconsequential. Where the height is concentrated, it minimises overshadowing impacts to the adjoining and nearby residential flat buildings in Queens Road and Crawford Road. 5. A public benefit is provided in the form of two EV on-street charging stations, which is relevant to the height variation sought as the public benefit effectively enables the development to access the bonus height to which the written request is directed. 6. The height variation is in the context of development that achieves the FSR intended for sites of this size, and provides additional apartments with a total FSR of 3.9:1, and so without exceeding the FSR standard in development where the western portion of the development is 4m below the permitted height limit.
2. While not identified as an environment planning ground on pp 25-27 of the written request, the written request nevertheless states, at p 15, that the proposed floor-to-floor height of 4.3m at the ground floor retail, and 3.17m for levels above the ground floor are a function of amendments to the NCC. This dimension is greater than the floor-to-floor heights of the existing development at 251-269 Bay Street that was built to conform to an earlier version of the NCC.
3. The written request states the additional floor-to-floor heights contribute to the exceedance by approximately one metre, supported in my view by the misalignment of floor levels between the existing development and proposed new built form depicted on the northern elevation, drawing DA-201a, an excerpt of which is re-produced below.
4. Finally, the written request states the proposal is in the public interest because it is consistent with the objectives of the height standard, and the objectives for development within the MU1 zone at [23], for reasons as follows: 1. The proposed height is not inconsistent with an ability to achieve the objectives of the MU1 Mixed Use zone. 2. The height variation is associated with mixed use development that is permissible in the zone, and which complies with the FSR permitted on the site. 3. The recessed form of the uppermost levels avoids conflict with land uses in adjoining zones The built form adjoining the R4 zone is setback 12m from the zone boundary, and the adjoining residential flat building is setback between 3-6m from the property boundary, resulting in a separation distance of 15-18m.
5. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the MU1 Mixed Use Zone, for the reasons given in the request.
6. In forming this opinion of satisfaction, I have considered the exceedance of the development as proposed, and not some other hypothetical distribution of floor space, such as that preferred by the Respondent's experts. I have also considered the Respondent's submission at [75] that even if the overshadowing is worsened by some alternative distribution, it would be imposed by an envelope anticipated by the controls. However the envelope proposed is also anticipated by the controls, when the effect of cll 4.3(2), 4.3(2A)(b) and 4.6(8) is properly understood. I accept that a strategic decision has been taken to locate a permissible height limit of 34m, subject to variation under cl 4.6 of the BLEP, north of R3 land with a limit of 14.5m. In this context, the Applicant has sought to minimise the loss of solar access to existing development to its south by concentrating floor space to the eastern portion of the site.
7. This more than answers, in my view, Ms Morrish's assertion, at par 176 of the joint expert report, that the height of the proposal has "no urban design based argument" and that the "top is bulky on both streets and lacks an elegant or successful silhouette … that 'creeps' over the existing building…". To the contrary, and setting aside the emotive language, good urban design outcomes must derive, in whole or in part, from an objective base, or else fall into appearance-based commentary alone. In this case, form follows function, where the function is, in part, to minimise the overshadowing to properties behind.
8. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the BLEP and I find no grounds on which the Court should not uphold the height request.

The FSR standard is not exceeded

1. The Respondent contends that the development proposes a quantum of GFA that exceeds the floor space ratio when calculated against the area of the site.
2. Ms Gordon cites a difference in documents prepared by the Applicant that both purport to calculate the GFA of the proposed development but which show significant variation. Architectural drawing DA-700 contains a table in which the GFA of Level 8 is said to 526.8m2, while the same drawing also refers the reader to a survey prepared by Cibar Surveyors that, when consulted, shows a GFA to the same level of the development to be 431.5m2.
3. The discrepancy was remedied by what the Applicant describes as corrected plans showing the GFA calculation (Exhibit EE).
4. Clause 4.4 (2C)(b) contains a provision that is virtually identical in its terms to that of the height standard at [67], but with the distinction that the area to which the threshold of 2,000m2 applies is to a lot, and not the land on which development is proposed.
5. The Applicant submits that reference to the singular is taken to be reference to the plural, according to s 8 of the Interpretation Act 1987.
6. As such, reference to a lot of land at cl 4.4(2C)(b) should be understood to apply to lots, as is the case here.
7. Such a reading is supported by the manner in which FSR and site area are to be calculated, according to cl 4.5 of the BLEP.
8. Subclause 4.5(3)(b) relevantly provides: (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be - … (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
9. As stated earlier, the development is proposed on Lots A, B and C in DP 376377 and Lot A in DP 171312 comprising 271-275 Bay Street and Lot 10 at 251-269 Bay Street.
10. Clause 4.5(6) is also relevant as it prescribes terms by which the lot at 251-269 Bay Street may also be included in the calculation of site area, by providing relevantly: (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
11. Absent a definition of the term 'significant development' in the Dictionary of the BLEP, the Applicant relies on authorities that it submits was found to be achieved by less than that proposed in the circumstances of this case.
12. The Applicant submits, and I agree, that significant development is proposed to the lot at 251-269 Bay Street for reasons set out at [50] and [51].
13. As I have also found at [52], it is appropriate to consider the area of Lot 10 in the calculation of site area.
14. What follows this conclusion is that the lots should be considered together for the purposes of calculating the site area and that it is therefore proper to consider the site area, to which the provision at cl 4.3(2C)(b) of the BLEP is directed, to be greater than 2,000m2. As such, the bonus FSR of 1:1 may be reasonably appropriated in calculating the FSR on the site.
15. I also accept the GFA plans at Exhibit EE that express the proposed FSR as 3.94:1, which complies with the FSR applicable to the site.

The design of residential apartment development

1. The Respondent contends that the excessive bulk and scale of the proposal is inconsistent with design quality principles 1, 2 and 3 in Sch 9 of Housing SEPP.
2. As stated earlier, a number of the contentions in this matter inter-relate. So it is with this contention, characterised as Contention 3 Overdevelopment, excessive bulk and scale. The particulars in Contention 3 refer to Contention 1 and 2, to excessive height and FSR, and to those height and FSR incentives that encourage lot consolidation.
3. In this way, the development is said to be inconsistent with design quality principles 1, 2 and 3.
4. Design quality principle 1 deals with Context and neighbourhood character and is in the following terms: 1 Context and neighbourhood character (1) Good design responds and contributes to its context, which is the key natural and built features of an area, their relationship and the character they create when combined and also includes social, economic, health and environmental conditions. (2) Responding to context involves identifying the desirable elements of an area's existing or future character. (3) Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. (4) Consideration of local context is important for all sites, including sites in the following areas - (a) established areas, (b) areas undergoing change, (c) areas identified for change.
5. Design Quality 2 - Built form and scale, is in the following terms: 2 Built form and scale (1) Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. (2) Good design also achieves an appropriate built form for a site and the building's purpose in terms of the following - (a) building alignments and proportions, (b) building type, (c) building articulation, (d) the manipulation of building elements. (3) Appropriate built form - (a) defines the public domain, and (b) contributes to the character of streetscapes and parks, including their views and vistas, and (c) provides internal amenity and outlook.
6. Design quality principle 3 deals with density in the following terms: 3 Density (1) Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context. (2) Appropriate densities are consistent with the area's existing or projected population. (3) Appropriate densities are sustained by the following - (a) existing or proposed infrastructure, (b) public transport, (c) access to jobs, (d) community facilities, (e) the environment.
7. I have considered the matters to which principles 1-3 are directed at [102]-[129]. For reasons set out earlier, I find the proposal is consistent, and not at odds, with the design quality principles at Sch 9 of the Housing SEPP.
8. I also state here that I have considered those aspects of the ADG as are relevant to the proposal, in accordance with s 147 of the Housing SEPP, and the architect for the development, Mr Conrad Johnston, provides a design statement (Exhibit E) of a kind required by s 29 of the EPA Regulation.

The site is contaminated

1. The Respondent contends that the Court has insufficient information before it to determine whether the site is suitable for the purposes of the development proposed to be carried out on the site.
2. It is agreed that the land is contaminated. Such a conclusion is recorded in the Detailed Site Investigation dated 11 November 2016 (the DSI) (Exhibit O), that also documents the findings of the investigation on site, including: 1. The area of investigation was limited to the service station site, mechanical workshop and rear laneway. 2. Workcover records dating back to 1955 are relied on to suggest four underground storage tanks are on the site; 1. 2 x 15,000L tanks located on the eastern boundary, 2. 1 x 26,000L tank located adjacent to the workshop entrance, and 3. 1 x 10,000L installed under the dispensing, or bowser area. 1. Soil sampling and analysis was undertaken at seven test bore locations down to a maximum depth of 6m. 2. Stabilised groundwater was found at depths of between 3.8 - 4m, with strong hydro carbon odours and sheen noted in one monitoring well, and one borehole. 3. Laboratory results found elevated levels of contaminants that exceed the adopted Groundwater Investigation Levels.
3. The DSI also identifies data gaps that require further assessment.
4. Expert evidence in respect of contamination and remediation was provided by Mr Malcolm Dale on behalf of the Applicant, and Dr Ian Swane on behalf of the Respondent. Together, the experts conferred in the preparation of a joint expert report that deals with Site Contamination, Acid Sulfate Soils and Groundwater (Exhibit 4) (contamination joint report).
5. The experts agree on the following: 1. A large volume of soil is proposed to be excavated in order to achieve a basement depth of around 8.6m below existing ground surface on the site. 2. There are different types of contamination that may be present on the site, but may also have migrated off the site. 3. Substances that have been previously found in groundwater on the site appear consistent with prior uses of the site including petroleum hydrocarbons from use as a service station, and chlorinated solvents and what is commonly known as PFAS from past use as a dry cleaner. These risks are of concern to human health and the environment. 4. The site can be remediated and made suitable for the proposed land use, so long as data gaps agreed to be present are addressed by further investigation and appropriate remediation that may be documented in a future amended Remediation Action Plan. I note this agreement also relates to appropriate management of acid sulfate soils. 5. The basement should be tanked so that contaminated groundwater is not drawn back into the site and does not adversely impact air quality, and so that acid sulfate soils are not oxidised such that groundwater would be then contaminated with heavy metals and a low PH. 6. An excavation and dewatering management plan should be prepared, and may be addressed by a condition of consent.
6. As stated above, the experts agree that notwithstanding the investigation on site to date, data gaps remain.
7. Where the experts disagree is whether further investigation is required for the Court to form an opinion of satisfaction that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out. This is because, as Dr Swane puts it in par 10 of the contamination joint report, there is a chance contamination is present that could pose risk to workers both on the site, and off site to the extent contamination has migrated into the road reserve or to other sites nearby; to future users of the subject site because of contaminated groundwater seepage into the basement that might result in vapours and the like; and because groundwater is able to be extracted in the area for uses such as irrigation on which restrictions may be required to be placed.
8. The data gaps identified by Dr Swane appear in Section A.1 of Attachment A to the contamination joint report, detailing steps he considers necessary prior to commencement of works on the site.
9. Mr Dale's response to those steps in Attachment A are set out in Section A.2 of the Attachment A.
10. Mr Dale believes that certain steps recommended by Dr Swane cannot be taken while the site is occupied by businesses that would be seriously inconvenienced and, in the case of the service station site, it simply is not possible to investigate the soil that lies underneath the underground storage tanks until demolition and excavation commence. For that matter, Mr Dale considers it possible the number and location of underground storage tanks may vary from that shown on plans annexed to the RAP (Exhibit P, folios 431-424).
11. The experts also agree it is likely that contaminants have migrated offsite.
12. Dr Swane acknowledges demolition and excavation of the service station and other sites on which contamination is present, or is likely to be present, serves to abate off-site migration and that it is ultimately positive to remove contaminated soil in the area proposed for the basement.
13. However, the soil below the lowest level of excavation may continue to harbour contaminants that are heavier than water, and so subside to a level below that of the excavation.
14. The Applicant also relies on a Remediation Action Plan dated 20 September 2022 (the RAP) (Exhibit P) that proposes a staged Remediation Strategy comprising 8 stages that includes: 1. Stage 1 - Site establishment; 2. Stage 2 - Demolition of structures (including all pavements); 3. Stage 3 - Site Walkover to assess signs of contamination; 4. Stage 4 - data gap investigation; 5. Stage 5 - Underground Storage Tank (UST) removal and validation; 6. Stage 6 - Remedial excavations of asbestos impacted soils; 7. Stage 7 - Bulk excavation and waste classification; and 8. Stage 8 - Final surface (systematic) validation sampling.

Conditions of consent

1. Given the degree of contamination evident on the site, Dr Swane considers it appropriate to require a Section A1 Site Audit statement (SAS) as it requires a greater level of investigation and surety about the extent of remediation undertaken.
2. The Applicant resists such an imposition and proposes a Section A2 SAS certificate instead.
3. Dr Swane cautions that if a Section A2 SAS is accepted, soil within the area of the basement would be removed and remediated but not the soil below, or to the side of the excavation. As the soil profile indicates highly permeable alluvial sand, the site is well suited to insitu methods of remediation.
4. Furthermore, a Section A2 SAS relies upon an agreed Environmental Management Plan (EMP), and it is possible the Respondent or the Environmental Protection Authority (EPA) may not approve an EMP and may require off site remediation in any event.
5. A consequence of this may be that the EPA declares the site to be significantly contaminated under the Protection of the Environment Operations Act 1997.
6. According to Dr Swane, only a Section A1 SAS can give the requisite confidence that sufficient remediation has been undertaken on a site known to be contaminated.
7. It is for this reason the Respondent presses that that any consent be subject to conditions requiring a Section A1 SAS and site audit report in accordance with the Contaminated Land Management Act 1997 prior to the release of any Occupation Certificate. Conditions 38, 62 and 147, as proposed by the Respondent, are in such terms.
8. Section 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated. If the land is contaminated, as it is agreed to be, the Court must be satisfied, given remediation is proposed to be carried out, that the land will be remediated before the land is used for the purpose which development is proposed to be carried out.
9. Remediation is defined at s 4.3 of the Hazards SEPP in the following terms: remediation means - (a) removing, dispersing, destroying, reducing, mitigating or containing the contamination of any land, or (b) eliminating or reducing any hazard arising from the contamination of any land (including by preventing the entry of persons or animals on the land).
10. I accept the land is contaminated, and that remediation is proposed.
11. I also accept that there is evidence in the DSI that reasonable attempts have been made to investigate the extent and degree of contamination on the land, notwithstanding such investigation has been constrained by the existing structures present on site today.
12. The Respondent submits that mini augers, sized to work in constrained environments, could be used to supplement the investigation completed to date. Photos of such augers are at Exhibit 13. As I understand the findings summarised at [163], there is little to be gained by such additional investigation.
13. I consider the investigation undertaken in the preparation of the DSI and RAP sufficient to scope the remediation necessary within the site boundaries, and I consider the data gaps identified by the experts in Attachment A of the contamination joint report properly characterised as 'known unknowns', and not 'unknown unknowns'.
14. As such I do not consider the data gaps to warrant refusal of the proposal. However, given there is no EMP before the Court, I decline to accept the Applicant's submission that a Section A2 SAS, that is likely to rely upon an EMP, is an appropriate course of action.
15. Instead, I accept the evidence of Dr Swane, and the submissions of the Respondent that the appropriate course of action is to require a Section A1 SAS to be issued prior to the release of the Occupation Certificate.
16. As such, I accept the site is contaminated, but that subject to the recommendations contained in the RAP, and the conditions of consent, the site will be made suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the Hazards SEPP.
17. I note here that an Acid Sulfate Soil (ASS) Management Plan accompanies the proposal, prepared by EIAustralia dated 24 April 2024 (Exhibit H). While the site is identified within an area of Class 4 ASS, the site is assessed, at p 5, to be not affected by ASS, however, localised occurrences are recognised. While the experts conferred on ASS, the deficiencies relate to investigations undertaken in 2016 that assumed a single level basement, with the depth of samples set at 6m (Exhibit H, p 6).
18. Laboratory results are contained at Appendix D of the ASS Management Plan, and management strategies are set out in Section 3.4 to Section 3.9.
19. A condition of consent is proposed at Condition 76. I note the Applicant objects to reference being made to the ASS Management Plan at Exhibit H, without further explanation. Absent reasons for the objection, I conclude the reference to the report at Exhibit H is valid and should remain.
20. Having considered the extent of excavation proposed for the basement, described at [166], the recommendations of the Geotechnical Investigation Report (Exhibit U), and the amended Stormwater Plans (Exhibit C), I have separately considered the quality of soil to be excavated above.
21. On the basis of the amended Stormwater plans (Exhibit C), and the landscape treatment described at [124] and depicted in the amended landscape plans (Exhibit B), I am satisfied that the proposed development incorporates water sensitive urban design principles, of a kind cited at cl 6.3(3) of the BLEP, into the design of the development.

Traffic and parking

1. In broad terms, the Respondent contends the proposal is unacceptable when the proposed arrangements for traffic, parking, access and waste collection are considered.
2. On these matters, the Court was assisted by traffic experts, Mr Paul Corbett on behalf of the Applicant and Mr Thomas Steal on behalf of the Respondent who conferred in the preparation of a joint expert report (Exhibit 7) (traffic joint expert report).
3. There is broad agreement in the traffic joint expert report as to matters originally in dispute between the parties. Those areas where contest remains are limited to: 1. Shortfall in the number of car parking spaces. 2. Manoeuvring of vehicles. 3. Allocation of car parking spaces.
4. I record the agreement of the traffic experts in the traffic joint expert report in respect of waste collection as follows: 1. The proposal removes what is referred to as a significant length of driveway layback which provides additional on-street parking and loading zones that are a public benefit to surrounding businesses and residents, and could be a location from which residential waste is collected, should the Respondent's Traffic Committee agree to such an arrangement. 2. Commercial waste collection is required to occur onsite via a small rigid vehicle (SRV) in a location such as the designated loading bay on Ground Level A that appears to accommodate such a vehicle for such a purpose. 3. Both the proposed onsite and on-street loading arrangement are acceptable.
5. That said, Mr Steal believes it will be difficult to service the site in the event the traffic committee does not approve the arrangement for loading and parking on Queens Road as proposed by the Applicant.
6. The loading arrangement on Queens Road provides for residential waste collection that Mr Corbett observes is currently provided in Queens Road by kerbside collection to the existing residential flat buildings in Queens Road, the upshot of which is that the current arrangement in Queens Road would continue and apply to the proposed development in the event the traffic committee refused the proposal for loading and EV charging spaces.
7. Mr Corbett argues collection is well considered in the proposed development. Access for a SRV is from Crawford Road where the existing development presents bins for kerbside collection.
8. Instead, the proposal provides for onsite collection of commercial waste in a loading area designed to accommodate an SRV. The limitations as to the size of waste vehicle do not derive from the new development proposed on the 271-275 Bay Street, but because of the existing height constraints in the vehicle entry and passage from Crawford Road.

Shortfall in number of car parking spaces

1. The experts considered the changes in parking adopted in architectural plans at Exhibit A and summarised the shortfall in parking rates as follows: 1. A shortfall of 4 spaces allocated to one-bedroom apartments. 2. A shortfall of 4 spaces allocated to three-bedroom apartments.
2. As such, while the experts agreed at par 2.8.1 of the traffic joint expert report that a shortfall of 5 spaces is acceptable, the shortfall is now a total of 8 spaces.
3. According to Mr Corbett, this shortfall should be understood in the context of the parking rates in the RDCP being expressed as whole numbers, unlike other LGA's that represent such rates in fractions.
4. Mr Corbett breaks down the rates to recommend 10 one-bedroom apartments are allocated one car space, while 4 one-bedroom apartments are allocated no parking space. Such an allocation results in parking providing at a rate of 0.78 parking spaces per one-bedroom apartment.
5. By way of comparison, the RMS Guide to Traffic Generating Development (RMS Guide), recommends, albeit in locations close to rail infrastructure, recommends a parking rate of 0.6 parking spaces per one-bedroom apartments in sub-regional centres.
6. Likewise, the proposed parking may be expressed as 1.64 parking spaces per three-bedroom apartment, whereas the RMS Guide recommends a rate of 1.4 spaces per three bedroom apartment.
7. Visitor parking is also deficient, with 12, and not 14 spaces provided.
8. In Mr Corbett's opinion, the proposed removal of the wide kerb crossing currently used by the service station provides additional on-street car parking, albeit the two charging stations would likely be line-marked and signposted for EVs.
9. In addition to allocated parking, the Applicant proposes two parking spaces be nominated as a car share parking space. A letter from a car share provider is at Annexure E of the traffic joint report, and confirms it is prepared to manage up to 2 car share vehicles on the site. Two such spaces are nominated on the architectural plans (DA-110) in an area that is publicly accessible, prior to the security roller door accessed from Crawford Road.
10. The traffic experts agree that one car share vehicle effectively serves to replace 5 vehicles. As two are proposed in a publicly accessible, ground floor area of the car park, I regard the shortfall to be made up and the number of car parking spaces to be acceptable.

Submissions after close

1. The supplementary expert report authored by Mr Steal, cited at [13], summarises his assessment of the architectural plans filed on 20 May 2024 to conclude the proposal remains deficient in the following terms: 1. The 'dead end turning area' at the end of the public parking on Basement Level 2 is not in accordance with clause 2.4.2c of Australian Standard AS2890.1 that requires cars to turn around and drive forwards, either in a single or three-point-turn. Swept paths provided to Mr Steal show a B85 vehicle encroaches within parking bays when turning. As such, a B99 vehicle executing the same manoeuvre would likewise conflict, and any vehicle finding all spaces occupied would be required to make an unacceptably long reversing manoeuvre to exit the site. 2. A single commuter bicycle parking location is shown on Basement Level 1 that does not depict a secure room, cage or similar, being a parking facility of a kind required by Table 1.1 of AS2890.3. Absent such a facility, the bicycle is vulnerable to theft. 3. The aisle width for access to motorcycle parking on Ground Level B is 1.63m, which is not sufficient for its intended use. 4. The shortfall in the number of car parking spaces allocated to one-bedroom apartments now appears to be four. The shortfall of parking spaces allocated to three bedroom apartments remains as before.
2. In response to the supplementary expert report of Mr Steal the Applicant submits that the matters above are minor issues that would not warrant the refusal of the application, as they are capable of resolution by agreed Conditions 42 and 130 that require compliance with AS 2890.1 and AS2890.3, or, in the case of parking allocation, it was addressed in the hearing and the parking allocation is set out in agreed Condition 7.
3. Having considered the architectural plans of Basement 2, and Ground Level B, I note that provision has been made for dead end turning on Basement Level 1, and for access to the motorcycle parking in the case of Ground Level B. The issues do not arise because of a failure to provide either, but because of an inadequacy according to Mr Steal.
4. I accept there is sufficient scope within the layout of both levels for the Applicant to comply with the terms of Condition 7 and resolve a layout within the existing basement enclosure that conforms to AS 2890.1 and AS2890.3, including the relocation or other amendment to the commuter bicycle parking currently shown on Basement Level 1. As such I accept the issues are capable of resolution by the agreed conditions of consent.
5. The arrangements for traffic, parking and waste satisfy me that the development is consistent with the provisions at s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) in that it removes existing vehicular access from Bay Street, being a classified road, such that the safety efficiency and ongoing operation of Bay Street will not be adversely affected by the development. To the extent that the Court must be satisfied as to the nature, volume and frequency of vehicles using Bay Street to access the site, I consider the removal of left hand turns from Bay Street to Queens Road significantly improves that condition. To the extent I must consider the vehicular movements seeking to access Bay Street as a result of the exit-only on to Queens Road, I accept the agreement of the experts that this and any addition is offset by the removal of the existing driveway onto Bay Street.
6. I also accept the agreed position of the experts that the collection of residential waste is acceptable from the proposed loading zone in Queens Road, and that a condition of consent requiring an application to be made to the local traffic committee to this effect prior to the issue of the Occupation Certificate is appropriate. Furthermore, while the matter is one for the local traffic committee, I note the agreement of the experts that there is a lack of loading facilities in the area and a loading zone such as that proposed represents a public benefit because it would be likely utilised by surrounding business and residents, in contrast to a private loading facility on the site that is not available as a shared resource.
7. While the Respondent proposes a deferred commencement condition requiring local traffic committee approval, on the basis of the agreed position of the experts, I adopt the Applicant's proposed wording of condition 66A, and Condition 136(f).
8. Section 2.119 of the Transport SEPP also requires the Court to be satisfied that development with a frontage to a classified road such as Bay Street, if it is development of a kind that is sensitive to traffic noise or vehicle emissions, includes measures that ameliorate such impacts.
9. While the Traffic and Parking Assessment prepared by TTPA dated August 2022 (Exhibit M) identifies the annual average daily traffic movements on Bay Street to be 17,630, the Acoustic Report prepared by Acoustic Logic, dated 8 August 2022 (Exhibit T) states, at p 10, that Bay Street has an estimated daily traffic volume of over 20,000 vehicles. Operating on this as an assumption, the Acoustic Report identifies the noise levels for residential accommodation adjacent to such that of a road found at s 2.120(3) of the Transport SEPP, and concludes that, subject to adoption of recommendations contained in the Acoustic Report, the internal noise levels will comply with the relevant levels.
10. I note the Acoustic Report is identified as a document in Condition 1 of the without prejudice conditions of consent, and is to be amended prior to the issue of a Construction Certificate (Condition 20). On this basis, I am satisfied that, in the event Bay Street is a classified road with a daily traffic volume of 20,000 vehicles, appropriate measures have been taken to ensure those levels at s 2.120(3) of the Transport SEPP will not be exceeded.
11. Finally, I note the development application was referred to Transport for NSW on 31 August 2022, and a response was received dated 20 September 2022 (Exhibit 3, Tab 13) in accordance with s 2.122 of the Transport SEPP, and general terms of approval are contained in without prejudice conditions of consent.

Water Management Act 2000

1. The DA Form (Exhibit R) identifies the proposed development as an application for integrated development requiring a licence or approval under the Water Management Act 2000.
2. The Geotechnical Investigation prepared by EI Australia dated 21 July 2022 records groundwater observed in all monitoring wells above the bulk excavation level that will require dewatering.
3. WaterNSW provided comments in a letter to the applicant dated 17 October 2022 (Exhibit 3, Tab 18), and included General Terms of Approval that are incorporated into without prejudice conditions of consent.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

1. The application is accompanied by the following BASIX certificates, prepared by Taylor Smith Consulting (Exhibit GG) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004): 1. Certificate No 1319963M_02 dated 16 May 2024, for development proposed on Lot A in DP 171312, comprising 66 apartments. 2. Certificates dated 16 May 2024, for development proposed on those affected lots in DP 1147577.
2. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the amended DA from the provisions of Sustainable Buildings SEPP.

Other matters that must be considered

1. While not a matter of contest between the parties, it is appropriate to record here the consideration given by the Court to matters requiring consideration or for an opinion of satisfaction to be formed by the Court, pursuant to local provisions within the BLEP.
2. The site is located within an area for which construction of a building cannot be carried out within approval in terms set out at cl 6.7 of the BLEP. Sydney Airport raises no objection to the erection of the development to a maximum height of 48.1m AHD, according to the Notice to Proponent of Property Development, issued by the Manager, Airfield Spatial & Technical Planning, being an authorised person of the Civil Aviation Safety Authority, dated 2 April 2024 (the Notice) (Exhibit 3, folios 191-198), and where the height of the prescribed airspace on the site is identified as 51m AHD. I note the terms of Sydney Airport's Notice are incorporated into those without prejudice conditions of consent that are agreed.
3. I do not understand the site to be located within the Noise Exposure Forecast Contour Map for the Sydney (Kingsford-Smith) Airport at an ANEF contour of 20 or greater. As such, consideration of a sort required by cl 6.8(3) of the BLEP is limited to whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and the location of the development by reference to Table 2.1 of the Australian Standard AS 2021-2015. I have considered those matters at cl 6.8(3)(a) and (b) of the BLEP and conclude the site is classified as acceptable.
4. The proposal is identified on the relevant Active Street Frontages Map at cl 6.9(2) of the BLEP, and so the grant of consent is precluded by subcl (3) unless the Court is satisfied the building will have an active street frontage. The architectural plans satisfy me that all the premises on the ground floor of the proposal facing Bay Street and Queens Road are for the purpose of business or retail premises, consistent with subcl (5), other than for those uses that are permitted by operation of subcl (3), being entrances and lobbies, access for fire services and vehicles.
5. As the site is located in a highly urbanised setting, and is supported by plans and other documents specifying the provision of services of a kind set out at cl 6.11 of the BLEP, I am satisfied essential services are available or will be available when required.

Conditions of consent are disputed

1. At the close of the hearing, the Court directed the Applicant to file and serve without prejudice conditions of consent and corrected architectural plans no later than 4pm 17 May 2024.
2. Further, that Parties were to confer and file agreed conditions of consent no later than 31 May 2024, including any submissions from Respondent on architectural plans above.
3. Finally, the Applicant was granted leave to provide written submissions in reply to any matters arising from the Respondent's submissions.
4. The Applicant served its without prejudice conditions on Friday 17 May and filed and served amended architectural drawings on Monday 20 May, in response to which the Respondent filed a supplementary expert report prepared by Mr Steal responding to the amended architectural plans on 31 May 2024, that I have considered at [215]-[219].
5. I have also dealt with the conditions of consent that are in contest between the parties elsewhere in this decision, including the condition proposed by the Respondent, at Condition 119, which I have considered at [241]-[243]
6. While I have found, at [53], that the lots should be considered together for the purposes of calculating site area, it is not necessary, in my view, for the lots to be consolidated as is sought by Ms Gordon.
7. Instead, the Applicant seeks a condition of consent to be imposed requiring the consolidation of the lots comprising 271-275 Bay Street and the registration on title of reciprocal rights between Lot 10 at 251-269 Bay Street and the consolidated lots to provide for access to the common open spaces, basement vehicular access, support, and services.
8. The instrument may only be released or varied with the consent of the Respondent, must be maintained for the life of the development, and provides that a covenant is to be registered on Lot 10 in DP 1147577 preventing the creation of additional floor area on that lot, such that the combined floor area of the Consolidated Lot and Lot 10 in DP 1174577 exceeds 4:1, consistent with cl 4.5(9) of the BLEP.

Orders

1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as agreed or assessed resulting from the amending of the development application by those amended plans and other documents the subject of the Notice of Motion dated 15 May 2024, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application No DA-2022/246, seeking consent for Site consolidation, demolition of the existing petrol station and buildings on the eastern part of the site; construction of an 11 storey mixed use development on the eastern part of the site comprising of basement and above ground parking levels, commercial tenancies on the ground floor and apartments above on Level 1 to Level 10; and alterations and additions to the existing 9 storey mixed use development on the western part of the site, at 251-269 and 271-275 Bay Street, Brighton-le-Sands, is determined by the grant of consent, subject to conditions of consent at Annexure A. 4. All exhibits are returned, except for Exhibits A, B, C, F, R, CC, DD, EE and FF.

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: 13 August 2024