Antoniou v City of Sydney Council

[2019] NSWLEC 1629

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Antoniou v City of Sydney Council [2019] NSWLEC 1629
Hearing dates:	Conciliation conference on 14 November 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to rely on the amended architectural plans set out in condition 1(a) of Schedule 1A of Annexure A. (2) The Applicant is to pay the Respondent’s costs of $5,000 including GST that were thrown away as a result of the amendment of the application for development consent under s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders. (3)   The appeal is upheld. (4)   Development consent is granted to Development Application No D/2018/1541 for the demolition of all existing structures and construction of a hotel on Lot D in DP 43824 and Lot Y in DP 441681, known as 4 and 6-8 Garden Street, Alexandria subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – hotel accommodation – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	George Antoniou (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) R Bullmore (Solicitor) (Respondent)   Solicitors: Jaku Legal (Applicant) City of Sydney Council (Respondent)
File Number(s):	2019/111712
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by City of Sydney Council (the Respondent) of Development Application DA D/2018/1541 for the demolition of all structures on the site, and use and construction of a new 5-storey hotel building with 39 rooms, a basement level and associated landscaping, at 4 and 6-8 Garden Street, Alexandria.

2. The site consists of 2 lots, comprising Lot D in DP 438124 and Lot Y in DP 441681, with a total area of 499.94m² and having a frontage to Garden Street of approximately 18m. The site has a fall from the rear boundary to the Garden Street frontage of approximately 5.46m.

3. 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 14 November 2019. The proceedings commenced onsite, after which the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared.

4. On 5 December 2019, a signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. The parties ask me to approve their decision as set out in the s 34 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 s 34 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’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and the Sydney Local Environmental Plan 2012 (SLEP).

8. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the following reasons:

1. The site is within the B4 Mixed Use zone in which hotel accommodation is a permissible use with consent, and in which the objectives are in the following terms:

•  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.

2. The proposed development complies with the permissible floor space ratio and height of buildings development standards as set out in the SLEP.

3. I am satisfied that the proposal is of a height, bulk and scale that is compatible with the surrounding built form, and includes a high standard of material and landscape treatment that achieves the requirements of cl 6.21 of the SLEP.

4. In relation to cl 7 of the SEPP 55, I am satisfied on the basis of the Preliminary Site Investigation report prepared by Douglas Partners dated December 2018 that the site can be made suitable for the proposed development, subject to those actions contained in the conditions of consent being completed.

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

11. The Court orders that:

1. Leave is granted to the Applicant to rely on the amended architectural plans set out in condition 1(a) of Schedule 1A of Annexure A.

2. The Applicant is to pay the Respondent’s costs of $5,000 including GST that were thrown away as a result of the amendment of the application for development consent under s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders.

3. The appeal is upheld.

4. Development consent is granted to Development Application No D/2018/1541 for the demolition of all existing structures and construction of a hotel on Lot D in DP 43824 and Lot Y in DP 441681, known as 4 and 6-8 Garden Street, Alexandria subject to the conditions of consent in Annexure A.

…………………………

T Horton

Commissioner of the Court

Annexure A (479 KB)

**********

Amendments

23 January 2020 - Pursuant to UCPR 36.17, amend orders of 18 December 2019. As follows;

The reference to the subject site in Order 4 be changed from “4 and 608 Garden Street, Alexandria” to “4 and 6 – 8 Garden Street, Alexandria” to correct an inadvertent typographical inadvertence.

Decision last updated: 23 January 2020