Vanovac Tuon Architects Pty Ltd v Bayside Council

Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited: State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development
State Environmental Planning Policy Amendment (Housing) 2023

Category: Principal judgment

Parties: Vanovac Tuon Architects Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
M Jaku (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)
Solicitors:
Jaku Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/472225

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. DA-2023/273 (PAN-373418), for the demolition of existing structures and construction of a five (5) storey mixed-use development, comprising two (2) commercial units and twenty-nine (29) residential units with rooftop communal area, basement carparking and lot consolidation (the proposal), at 5 – 13 Robey Street, Mascot (Lot 1 in DP946791 and Lots 8, 9, 10 and 11 of Section A in DP4115) (the site), by Bayside Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 October 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

Amended application

3. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The amended plans and documents comprising the application are as follows:

(i) Architectural plans prepared by Vanovac Tuon Architects Pty Ltd:

| Drawing No. | Drawing Name | Date | | A0000, Issue 017 | Cover Sheet | 07/08/25 | | A0200, Issue 01 | Existing & Demolition Plan | 31/07/25 | | A0500, Issue 09 | Site Analysis Plan | 26/05/25 | | A1000, Issue 017 | Basement 2 | 06/08/25 | | A1001 (A), Issue 017 | Basement 1 | 06/08/25 | | A1001 (B), Issue 017 | Subfloor Open Area Space Allocation | 06/08/25 | | A1002, Issue 018 | Ground Floor | 06/08/25 | | A1003, Issue 018 | Level 1 Floor Plan | 06/08/25 | | A1004, Issue 017 | Level 2 Floor Plan | 06/08/25 | | A1005, Issue 017 | Level 3 Floor Plan | 06/08/25 | | A1006, Issue 018 | Level 4 Floor Plan | 06/08/25 | | A1100, Issue 015 | Roof Plan | 06/08/25 | | A1200, Issue 011 | Adaptable Unit – Sheet 1 | 06/08/25 | | A1201, Issue 011 | Adaptable Unit – Sheet 2 | 06/08/25 | | A1202, Issue 01 | Adaptable Unit – Sheet 3 | 06/08/25 | | A2000, Issue 016 | North Elevation | 06/08/25 | | A2001, Issue 017 | South Elevation | 06/08/25 | | A2002, Issue 017 | East Elevation | 06/08/25 | | A2003, Issue 017 | West Elevation | 06/08/25 | | A2200, Issue 016 | Section 1 | 06/08/25 | | A2201, Issue 016 | Section 2 | 06/08/25 | | A2202, Issue 018 | Section 3 | 06/08/25 | | A2203, Issue 05 | Section 4 | 06/08/25 | | A2204, Issue 07 | Robey Street – Street Analysis | 06/08/25 | | A3100 | Section Details | | | A9120, Issue 08 | GFA Diagram | 06/08/25 | | A9121, Issue 07 | Cross Ventilation Diagrams – Sheet 1 | 06/08/25 | | A9122, Issue 07 | Cross Ventilation Diagrams 2 – Sheet 2 | 06/08/25 | | A9130, Issue 08 | Landscape Area Diagram | 06/08/25 | | A9131, Issue 07 | Communal Open Space Diagram | 06/08/25 | | A9300, Issue 07 | View From the Sun – Winter Solstice | 06/08/25 | | A9301, Issue 07 | View From the Sun 9.00 AM | 06/08/25 | | A9302, Issue 07 | View From the Sun 10.00 AM | 06/08/25 | | A9303, Issue 07 | View From the Sun 11.00 AM | 06/08/25 | | A9304, Issue 07 | View From the Sun 12.00 PM | 06/08/25 | | A9305, Issue 07 | View From the Sun 1.00 PM | 06/08/25 | | A9306, Issue 07 | View From the Sun 2.00 PM | 06/08/25 | | A9307, Issue 07 | View From the Sun 3.00 PM | 06/08/25 | | A9400, Issue 05 | Height Plane Diagram | 06/08/25 | | A9500, Issue 08 | 3D View | 06/08/25 |

(ii) Schedule of amendments prepared by Vanovac Tuon Architects Pty Ltd dated 16 September 2025; (iii) Landscape plans prepared by Studio 151:

| Drawing No. | Drawing Name | Date | | LDA000, Revision 16 | Cover Page | 05/08/2025 | | LDA100, Revision 13 | Landscape Plan Ground Floor | 05/08/2025 | | LDA101, Revision 13 | Detailed Landscape Plan Ground Floor | 05/08/2025 | | LDA102, Revision 12 | Landscape Plan Level 4 | 05/08/2025 | | LDA103, Revision 10 | Detailed Landscape Plan Level 4 | 05/08/2025 | | LDA104, Revision 5 | Landscape Plan Levels 01 | 17/07/2025 | | LDA105, Revision 5 | Landscape Plan Level 02 | 17/07/2025 | | LDA106, Revision 4 | Landscape Plan Level 03 | 17/07/2025 | | LDA200, Revision 9 | Landscape Sections 1 | 05/08/2025 | | LDA201, Revision 5 | Landscape Sections 2 | 17/07/2025 | | LDA300, Revision 6 | Landscape Planting Palette | 05/08/2025 | | LDA400, Revision 1 | Landscape Details | 22/05/2023 | | LDA500, Revision 1 | Landscape Specifications | 22/05/2023 |

(iv) Stormwater plans prepared by SYJ Consulting Engineers:

| Drawing No. | Drawing Name | Date | | D001, Revision E | Cover Sheet | 8/8/2025 | | D010, Revision E | Basement 2 Stormwater Management Plan | 8/8/2025 | | D020, Revision E | Basement 1 Stormwater Management Plan | 8/8/2025 | | D030, Revision E | Ground Floor Stormwater Management Plan | 8/8/2025 | | D040, Revision E | Roof Drainage Plan | 8/8/2025 | | D050, Revision E | Stormwater Details - 1 | 8/8/2025 | | D051, Revision E | Stormwater Details - 2 | 8/8/2025 | | D052, Revision E | Stormwater Details - 3 | 8/8/2025 | | D060, Revision E | MUSIC Catchments Plan & Results | 8/8/2025 | | D061, Revision E | OSD Catchments Plan | 8/8/2025 |

(v) Soil and Water Management plans prepared by SYJ Consulting Engineers:

| Drawing No. | Drawing Name | Date | | D001, Revision E | Cover Sheet | 8/8/2025 | | D010, Revision E | Soil and Water Management Notes | 8/8/2025 | | D020, Revision E | Soil and Water Management Plan & Details | 8/8/2025 |

(vi) Clause 4.6 Variation Request – Height of Building Standard prepared by Planning & Co dated 8 October 2025. (vii) Design Verification Statement prepared by Vanovac Tuon Architects Pty Ltd dated 7 August 2025. (viii) Development Application Design Report prepared by Vanovac Tuon Architects Pty Ltd dated August 2025. (ix) Traffic Impact Assessment prepared by Traffix dated 4 August 2025. (x) Flood Study Report (Rev E) prepared by JCO Consultants Pty Ltd dated 12 August 2025. (xi) Detailed Site Investigation and Acid Sulfate Soils Assessment prepared by Trace Environmental dated 25 March 2025. (xii) Remedial Action Plan prepared by Trace Environmental dated 29 May 2025. (xiii) Acid Sulfate Soils Management Plan prepared by Trace Environmental dated 29 May 2025. (xiv) Updated Waste Management Plan prepared by Vanovac Tuon Architects Pty Ltd. (xv) BASIX Certificate No. 1813185M prepared by Michael Khoury dated 16 September 2025. (xvi) Clarified owners’ consent letters dated 8 September 2025.

Pre-conditions to the grant of consent

State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development and State Environmental Planning Policy (Housing) 2021

4. State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development (SEPP 65) applied to the application when it was lodged. SEPP 65 was then repealed by State Environmental Planning Policy Amendment (Housing) 2023, which commenced on 14 December 2023. The provisions of SEPP 65 that were transferred to Ch 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) apply to the application pursuant to s 8(2A) of Sch 7A of the Housing SEPP.

5. Section 147(1) of the Housing SEPP requires a consent authority to consider specified matters in determining an application for residential apartment development. On the basis of the Council’s submission and the advice received by the Council from the Bayside Design Review Panel, I am satisfied that the applicable provisions of Ch 4, including the specific requirements of s 147(1) of the Housing SEPP, have been considered.

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the consent authority must not grant consent to development unless it has considered whether the site is contaminated and, subject to its status of contamination, is satisfied that the site is or will be made to be suitable for the development.

7. A Preliminary Site Investigation dated 13 April 2021 (PSI) and a Detailed Site Investigation and Acid Sulfate Soils Assessment (DSI) dated 23 August 2024 prepared by Trace Environmental accompanied the application. Further, an updated DSI dated 25 March 2025 (Updated DSI), a Remedial Action Plan dated 29 May 2025 (RAP) and an Acid Sulfate Soils Management Plan dated 29 May 2025 (ASSMP) prepared by Trace Environmental accompany the (amended) proposal. The updated DSI and RAP conclude that the site can and will be suitable for the proposed development, subject to compliance with the recommendations provided, which have been incorporated into the agreed conditions of consent.

Bayside Local Environmental Plan 2021 (LEP 2021)

8. The site is zoned E1 Local Centre pursuant to LEP 2021 and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

• To encourage investment in local commercial development that generates employment opportunities and economic growth.

• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To ensure development within the zone does not detract from the economic viability of commercial centres.

• To ensure the scale of development is compatible with the existing streetscape and does not adversely impact on residential amenity.

• To ensure built form and land uses are commensurate with the level of accessibility, to and from the centre, by public transport, walking and cycling.

• To create lively town centres with pedestrian focused public domain activated by adjacent building uses and landscape elements.

• To accommodate population growth in the Rockdale town centre through high density residential uses that complement retail, commercial and cultural premises in the town centre.

9. The proposal complies with the floor space ratio development standard for the site of 2:1 under cl 4.4 of LEP 2021.

10. Clause 5.21 of LEP 2021 applies to the proposal because the site is subject to flooding in a 1% AEP flood event and is within the flood planning area. A Flood Study Report prepared by JCO Consultants dated 13 August 2024 accompanied the application. Further, an updated Flood Study Report prepared by JCO Consultants dated 12 August 2025 accompanied the amended application. I am satisfied that the proposal has been designed to achieve the relevant minimum flood levels and is satisfactory. I accept the Council’s submission that the matters under cl 5.21(2) and (3) of LEP 2021 have been considered.

11. Clause 6.1 of LEP 2021 applies to the proposal because the site is identified on the Acid Sulfate Soils Map as Class 4 and works are proposed more than 2 metres below the natural ground surface. The preparation of the ASSMP has addressed the requirements of cl 6.1 of LEP 2021.

12. In deciding whether to grant development consent for earthworks, the consent authority must consider the matters set out under cl 6.2(3) of LEP 2021. I am satisfied, having regard to the following, that the matters listed under cl 6.2(3) of the LEP 2021 have been adequately considered:

13. Stormwater drawings prepared by SYJ Consulting Engineers dated 12 August 2024 (as amended in accordance with the Amended DA);

14. Soil and water management plans prepared by SYJ Consulting Engineers dated 29 September 2023 (as amended in accordance with the Amended DA);

15. Geotechnical Assessment prepared JK Geotechnics dated 6 April 2023;

16. PSI;

17. DSI;

18. Updated DSI;

19. RAP;

20. ASSMP; and

21. the agreed conditions of consent.

22. Under cl 6.3 of LEP 2021, the consent authority must be satisfied as to the matters set out under cl 6.3(2) of the LEP 2021 with respect to stormwater and water sensitive urban design. Having regard to the stormwater and landscaping drawings that accompanied the amended proposal, and the agreed conditions of consent, I am satisfied that the matters set out in cl 6.3(2) of LEP 2021 are met by the proposal.

23. Under cl 6.7 of LEP 2021, the consent authority must not grant development consent to development that is a controlled activity within the meaning of Div 4 of Pt 12 of the Airports Act 1996 (Cth) unless the Applicant has obtained approval for the controlled activity under regulations made for the purposes of that Division. The application was referred to Sydney Airport Corporation Limited (SACL) as a controlled activity under Div 4 of Pt 12 of the Airports Act 1996 (Cth). On 23 October 2023, SACL granted its approval to the proposed development in accordance with cl 15A(2) of the Airports (Protection of Airspace) Regulations 1996 (Cth) subject to requirements which are incorporated in the conditions of consent.

24. Clause 6.8 of LEP 2021 applies to the proposal because the site is near Sydney (Kingsford-Smith) Airport and within an ANEF contour greater than 20 (the 25 to 30 ANEF contour), and the consent authority considers the site is likely to be adversely affected by aircraft noise. An Acoustic Report prepared by Acoustic Consulting Engineers dated 7 September 2023 accompanied the application and addresses the requirements of cl 6.8(3) of the LEP 2021. The Council submitted that the matters required to be considered under cl 6.8 of LEP 2021 have been adequately considered by the Council and the requirements of the Acoustic Report have been incorporated in the conditions of consent.

25. Clause 6.9 of LEP 2021 applies to the proposed development because the site is identified on the Active Street Frontages Map. I am satisfied that the proposal will have an active street frontage after its construction and occupation.

26. I am satisfied on the basis of the Council’s submission that all essential services for the proposed development are available or that adequate arrangements have been made to make them available when required in accordance with cl 6.11 of the LEP 2021.

Contravention of the height of buildings development standard

18. The proposal has a maximum height of 18.3m. The height of buildings development standard for the site is 14m under cl 4.3 of LEP 2021.

19. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning & Co dated 8 October 2025.

20. Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant’s written request to contravene the height of buildings development standard

21. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

22. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

23. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

24. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

25. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

26. the development standard has been abandoned by the council;

27. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

28. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

29. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the gross floor area (GFA) of the proposal is below the FSR development standard, demonstrating that the building envelope which is consistent with the allowable GFA on the site has been reconfigured in response to the unique opportunities and constraints of this site. The resultant building envelope is consistent with the desired future character of the area and particularly the northern side of Robey Street within the Mascot Local Centre.

30. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

31. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as reconfiguring the permitted building envelope given by the FSR development standard in response to the unique opportunities and constraints of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

27. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 17 October 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

28. The orders of the Court are:

29. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. DA-2023/273 (PAN-373418) pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $30,000, within 28 days of the date of these orders.

30. The appeal is upheld.

31. Development consent is granted to Development Application No. DA-2023/273 (PAN-373418), for the demolition of existing structures and construction of a five (5) storey mixed-use development, comprising two (2) commercial units and twenty-nine (29) residential units with rooftop communal area, basement carparking and lot consolidation at 5 – 13 Robey Street, Mascot (Lot 1 in DP946791 and Lots 8, 9, 10 and 11 of Section A in DP4115), subject to the conditions of consent in Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (621 KB, pdf)

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