Abrams v The Council of the City of Sydney

[2019] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abrams v The Council of the City of Sydney [2019] NSWLEC 1481
Hearing dates:	Conciliation conference on 22 July 2019; 5 August 2019; 13 August 2019
Date of orders:	11 October 2019
Decision date:	11 October 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1)   The Applicant is granted leave to amend development application D/2019/226 and to rely on the plans listed in Part B, Condition 1 of Annexure A. (2) For the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 the amendments are minor amendments. (3)   The Appeal is upheld. (4)   Development application D/2019/226 for alterations to the existing commercial building at 9 Power Avenue, Alexandria is approved subject to the conditions contained in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Gary Abrams (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: S Duggan SC (Applicant) A Simpson (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Sydney City Council (Respondent)
File Number(s):	2019/127224
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act)) against the deemed refusal by the Council of the City of Sydney (Council) of Development Application D/2019/226. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The development application relates to land identified as Lot 2 in DP 80350 at 9 Power Avenue, Alexandria (the site). It seeks consent for alterations to an existing 2 storey commercial building including the addition of a new third level over part of the site.

3. The development application was originally lodged with Council on 8 March 2019, and notified to adjoining residents and land owners between 25 March and 16 April 2019, resulting in the receipt of four submissions.

4. 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 26 August 2019. The s 34 conference was adjourned twice, to allow for finalisation of amended plans, and was reconvened on 5 and 13 August 2019. I presided over the conciliation conference. The conciliation conference commenced on 26 August 2019 with a view on site and immediate surroundings. No oral submissions from objectors were made at the site view.

5. As a result of the conciliation conference, the development application plans were amended. The amended plans were renotified between 21 August and 5 September 2019, resulting in the receipt of two submissions. The parties reached an agreement, based on those amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. The main changes between the plans as originally submitted and the plans the subject of the s34 agreement are:

1. The building height was reduced slightly to render it compliant with the height of building development standard in Sydney Local Environmental Plan 2012 (SLEP 2012).

2. Minor changes to the entry stairs and void space to the lobby.

3. The setting back of the new third level behind the northern parapet to Power Avenue, from a nil setback to 3.645m to align with the setback of the adjoining building to the east (5-7 Power Avenue).

4. Introducing a setback for a portion of the boundary abutting 5-7 Power Street and a skylight over the Level 1 lobby within that setback.

5. Relocation of rooftop plant and extending the area of roof garden along the eastern boundary at the southern end of Level 2.

7. The agreement reached between the parties involves the Court upholding the appeal and granting development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. I have formed the opinion that the relevant jurisdictional matters have been satisfied for the reasons set out in [8] below.

8. The relevant jurisdictional matters relate to the provisions of SLEP 2012. I am satisfied that the development is for the purpose of office premises, which is a permissible use in the B4 Mixed Use zone. I also accept the advice of the parties and the evidence submitted with the amended set of plans (attached at Annexure “A”), that the development does not contravene any development standard in SLEP 2012.

9. 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.

10. The Court orders:

1. The Applicant is granted leave to amend development application D/2019/226 and to rely on the plans listed in Part B, Condition 1 of Annexure A.

2. For the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 the amendments are minor amendments.

3. The Appeal is upheld.

4. Development application D/2019/226 for alterations to the existing commercial building at 9 Power Avenue, Alexandria is approved subject to the conditions contained in Annexure A.

…………………………

J Bindon

Acting Commissioner of the Court

Annexure A (372 KB)

Plans (2.34 MB)

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Decision last updated: 11 October 2019