16 Cope St Pty Ltd v Council of the City of Sydney

[2020] NSWLEC 1454

Land and Environment Court

New South Wales

Medium Neutral Citation:

16 Cope St Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1454

Hearing dates:

Conciliation conference on 17 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [9]

Catchwords:

DEVELOPMENT APPLICATION – Boarding house development – agreement between the parties – conciliation conference – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

16 Cope St Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
P Lennon (Solicitor) (Applicant)
A Singh (Solicitor) (Respondent)

File Number(s):

2018/366600

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application D/2018/452 by the Council of the City of Sydney (the Respondent), seeking consent for the demolition of all existing structures, excavation, remediation and construction for a 5 storey boarding house which has been amended and now comprises 37 boarding rooms, 1 manager’s room and 1 basement level, containing 4 car parking spaces, 13 bicycle parking spaces and 7 motorbike parking spaces (the proposed development) at 16-22 and 24 Cope Street, Redfern on Lot 1 in DP 86495 and Lot 1 in DP 904899 (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 September 2020. I presided over the conciliation conference.

3. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 14 September 2020.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the B4 Mixed Use zone identified in the Sydney Local Environmental Plan 2012 (SLEP). The proposed use is defined as boarding house development and is permissible with consent in the B4 zone.

2. The objectives of the B4 zone are:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To ensure uses support the viability of centres.

3. The site is marked as Class 5 land on the Acid Sulfate Soils Map at subcl 7.14(2) of the SLEP however I accept the conclusions of the Acid Sulfate Soils Assessment (the Assessment) prepared by Benviron Group dated August 2020 that the site is not impacted by acid sulfate soils in the vicinity of bore holes nominated in the Assessment.

4. Subclause 6.21(3) of the SLEP requires the Court be satisfied the proposed development exhibits design excellence in accordance with subcl 6.21(4). On the basis of the Respondent’s urban design advice dated 17 September 2020, I am satisfied that the proposed development exhibits design excellence.

5. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), contains standards at cl 29 that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards.

6. I am also satisfied that the provisions of cl 30 of the Affordable Housing SEPP are met and I am satisfied that the amended plans result in a development that is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP.

7. On the basis of the following, I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land:

• A Detailed Site Investigation and Remedial Action Plan (the RAP) that confirm the site can be made suitable for the proposed development, along with interim site auditor advice which confirms that these documents are satisfactory.

• Furthermore, I note Condition 64 of Annexure B has been imposed which requires that works contemplated by the RAP be carried out prior to the release of a subdivision certificate.

8. Finally I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).

7. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely on the following amended documents:

1. amended architectural plans prepared by Hosking Munro Pty Ltd dated August 2020 as set out in Annexure ‘A’ and listed in the table below;

Drawing number	Drawing name	Date
EX6100 Issue D	Existing Site Plan	12/08/2020
EX6101 Issue D	Existing Ground Floor Plan	12/08/2020
EX6102 Issue D	Existing First Floor Plan	12/08/2020
DA6100 Issue H	Cover + BCA Section J Compliance Report	12/08/2020
DA6101 Issue H	Site Analysis Plan and BASIX Notes	12/08/2020
DA6102 Issue H	Basement Floor Plan	12/08/2020
DA6103 Issue H	Site + Ground Floor Plan	12/08/2020
DA6104 Issue H	First Floor Plan	12/08/2020
DA6105 Issue H	Second Floor Plan	12/08/2020
DA6106 Issue H	Third Floor Plan	12/08/2020
DA6107 Issue I	Fourth Floor Plan	12/08/2020
DA6108 Issue J	Roof Plan	12/08/2020
DA6113 Issue H	GFA Calculation	12/08/2020
DA6200 Issue K	East Elevation	12/08/2020
DA6201 Issue K	North Elevation	12/08/2020
DA6202 Issue K	South Elevation	12/08/2020
DA6203 Issue K	West Elevation	12/08/2020
DA6204 Issue G	East Elevation Finishes Schedule	12/08/2020
DA6205 Issue G	North Elevation Finishes Schedule	12/08/2020
DA6206 Issue G	South Elevation Finishes Schedule	12/08/2020
DA6207 Issue G	West Elevation Finishes Schedule	12/08/2020
DA6210 Issue F	Cope Street Elevations	12/08/2020
DA6211 Issue F	Proposed Street Elevation	12/08/2020
DA6215 Issue E	Building Envelope	19/08/2020
DA6300 Issue J	Section A-A	25/08/2020
DA6301 Issue J	Section B-B	12/08/2020
DA6302 Issue L	Section C1-C1 Section C2	25/08/2020
DA6303 Issue J	Section D-D	12/08/2020
DA6304 Issue J	Detailed Section	12/08/2020
DA6305 Issue D	Cope Street Section	12/08/2020
DA6701 Issue I	Driveway Sections 1-1; 2-2	25/08/2020
DA6702 Issue E	Swept Path Vehicles Entering	12/08/2020
DA6703 Issue E	Swept Path Vehiles Exiting	12/08/2020
DA6801 Issue F	Typical Accessible Room Layout	12/08/2020
DA6802 Issue F	Manager Room Layout + Typical Ground Floor Room Layout	12/08/2020
DA6803 Issue F	Typical 1st, 2nd Flor Room Layouts	12/08/2020
DA6804 Issue F	Typical 4th Floor Room Layouts	12/08/2020
DA6805 Issue F	Typical Pre Adaptable Room Layout	12/08/2020
DA6806 Issue F	Typical Post Adaptable Room Layout	12/08/2020
DA6901 Issue E	Shadow Diagram – 9am 21st June	26/08/2020
DA6902 Issue E	Shadow Diagram – 10am 21st June	26/08/2020
DA6903 Issue E	Shadow Diagram – 11am 21st June	26/08/2020
DA6904 Issue E	Shadow Diagram – 12 Noon 21st June	26/08/2020
DA6905 Issue E	Shadow Diagram – 1pm 21st June	26/08/2020
DA6906 Issue E	Shadow Diagram – 2pm 21st June	26/08/2020
DA6907 Issue E	Shadow Diagram – 3pm 21st June	26/08/2020
DA6913 Issue E	Sun Eye View Diagrams Winter 21st June 9am – 12 Noon Proposed	26/08/2020
DA6914 Issue E	Sun Eye View Diagrams Winter 21st June 1pm – 3pm Proposed	26/08/2020
DA6915 Issue E	Sun Eye View Diagrams Summer 21st Dec 9am – 12 Noon Proposed	26/08/2020
DA6916 Issue E	Sun Eye View Diagrams Summer 21st Dec 1pm – 3pm Proposed	26/08/2020
DA6917 Issue E	Sun Eye View Diagrams Equinox 21st March 9am – 12 Noon Proposed	26/08/2020
DA6918 Issue E	Sun Eye View Diagrams Equinox 21st March 1pm – 3pm Proposed	26/08/2020
DA6919 Issue D	Sun Eye View Diagrams Winter 21st June 9am – 12 Noon Existing	26/08/2020
DA6920 Issue D	Sun Eye View Diagrams Winter 21st June 1pm – 3pm Existing	26/08/2020
DA6921 Issue D	Sun Eye View Diagrams Summer 21st Dec 9am – 12 Noon Existing	26/08/2020
DA6922 Issue D	Sun Eye View Diagrams Summer 21st Dec 1pm – 3pm Existing	26/08/2020
DA6923 Issue D	Sun Eye View Diagrams Equinox 21st March 9am – 12 Noon Existing	26/08/2020
DA6924 Issue D	Sun Eye View Diagrams Equinox 21st March 1pm – 3pm Existing	26/08/2020

2. amended landscape plans prepared by Site Design Studios dated August 2020 listed in the table below;

Drawing number	Drawing name	Date
L-01 Revision C	Cover	28/08/2020
L-02 Revision C	Ground floor landscape plan	28/08/2020
L-03 Revision C	4th floor landscape plan	28/08/2020
L-04 Revision C	Planting details	28/08/2020
L-05 Revision C	Section A & B	28/08/2020
L-06 Revision C	Section C & D	28/08/2020

3. amended BASIX certificate prepared by Gradwell Consulting dated 20 August 2020;

4. amended Heritage Impact Statement prepared by Form Architects (Aus) Pty Ltd dated August 2020;

5. amended Acoustic Report prepared by Atkins Acoustics and Associates Pty Ltd dated August 2020;

6. amended Plan of Management prepared by Planning Lab dated 14 August 2020;

7. Traffic and car parking statement prepared by TTPP dated 31 July 2020;

8. Acid Sulfate Soil Assessment prepared by Benviron Group dated 5 August 2020;

9. Detailed Site Investigation prepared by Benviron Group dated 5 August 2020;

10. Remediation Action Plan prepared by Benviron Group dated 5 August 2020; and

11. Interim advice prepared by Rod Harwood dated 11 August 2020.

2. The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development consent is granted to development application No. D/2018/452 for demolition of existing structures, excavation, remediation and construction of a 5 storey boarding house, comprising 37 boarding rooms, 1 manager’s room, 4 visitor bicycle parking spaces at ground level and 1 basement level, containing 4 car parking spaces, 14 bicycle parking spaces and 8 motorbike parking spaces on the property known as 16-22 and 24 Cope Street, Redfern being the land comprised in Lot 1 Deposited Plan 86495 and Lot 1 Deposited Plan 904899, subject to the conditions of consent in Annexure ‘B’.

…………………..

T Horton

Commissioner of the Court

Annexure A (23885323, pdf)

Annexure B (558961, pdf)

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Decision last updated: 25 September 2020