Aremob Pty Ltd v The Council of the City of Sydney

[2024] NSWLEC 1783

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aremob Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1783

Hearing dates:

Conciliation Conference on 6 September 2024, 2 October 2024, 18 October 2024 and 6 November 2024; final submissions on13 November 2024

Date of orders:

05 December 2024

Decision date:

05 December 2024

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application D/2023/1109 as amended, for demolition of garage, pool, surrounding garden, removal of 33 trees, transplantation of four trees and retention of 19 trees on the site, and the construction of a new secondary dwelling, excavation for a basement level with garage, lower ground level, swimming pool and associated tree removal and landscaping work at 1 and 1B Wylde Street, Potts Point NSW, legally described as Lots 1 and 3 in DP1053056, is determined by the grant of consent, subject to the conditions set out in Annexure A.

(3) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the development as agreed or assessed in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7

Land and Environment Court Act 1979, s 34

Heritage Act 1977, s 60

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 2.6, 6.6, 6.7, 6.9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.4, 6.21C, Sch 5

Category:

Principal judgment

Parties:

Aremob Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/104744

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2023/1109, for demolition of garage, pool, surrounding garden, removal of 33 trees, transplantation of four trees and retention of 19 trees on the site, and the construction of a new secondary dwelling, excavation for a basement level with garage, lower ground level, swimming pool and associated tree removal and landscaping work at 1 and 1B Wylde Street, Potts Point NSW, legally described as Lots 1 and 3 in DP1053056.

2. The subject site is accessed from Wylde Street, and is located in a prominent, elevated position at the northern end of Potts Point, on top of an escarpment above Cowper Wharf Road which lies to the west. The site is occupied by a two-storey sandstone villa, known as “Bomera”, at the north-west of the site, and a two-storey former stables building to the south of the villa, known as “The Stables”. A single storey garage building is located south of The Stables building, off the Wylde Street frontage. Adjoining the subject site to the east, at 1A Wylde Street, is “Tarana”, a three-storey villa which has been adapted into three residential apartments.

3. On 15 December 2023, development application D/2023/1109 was lodged with the Council of the City of Sydney, seeking consent for the works generally described above.

4. On 8 March 2024, the Applicant filed an appeal under s 8.7 of the EPA Act in Class 1 of the Court’s jurisdiction.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 September 2024. I presided over the conciliation conference, commencing with an onsite view, in the company of legal representatives, their experts and the Applicant.

6. The conciliation was adjourned a number of times to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. On the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 8 November 2024.

7. 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.

8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional Matters and Planning Framework

Sydney Local Environmental Plan 2012

9. The site is located within the R1 General Residential zone, pursuant to Sydney Local Environmental Plan (SLEP) 2012. The proposal is consistent with the objectives of the zone, which are:

To provide for the housing needs of the community

To provide for a variety of housing types and densities

To enable other land uses that provide facilities or services to meet the day to day needs of residents

To maintain the existing land use pattern of predominantly residential uses

10. Development for the purposes of dwelling houses is permissible in Zone R1. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

11. The proposed development complies with the height of buildings development standard of 18 metres under cl 4.3 of the SLEP 2012. The parties agree and I am satisfied that amended architectural plan DA-11 (Luigi Rosselli Architects) indicates compliance with this standard.

12. The proposal complies with the maximum floor space ratio of 2:1 that applies to the site under cl 4.4(2) of the SLEP 2012. The parties agree and I am satisfied that the amended architectural plan DA-12 (Luigi Rosselli Architects) indicates compliance with this standard.

13. Pursuant to cl 5.4(9) of the SLEP 2012, regarding development for the purposes of a secondary dwelling, the parties agree and I am satisfied that architectural drawing DA-37 (Luigi Rosselli Architects) indicates compliance with this control.

Heritage conservation

14. The house group “Bomera” and “The Stables” are identified in Sch 5 of SLEP 2012 as an item of environmental heritage. The site also sits within the Potts Point Heritage Conservation Area that is likewise identified within Sch 5 of the SLEP 2012.

15. The house “Bomera” and its neighbour “Tarana” are listed as an item of State significance on the NSW State Heritage Register under the Heritage Act 1977.

16. The parties and their heritage experts agree that the amended architectural plans and other documents including the heritage impact statement and conservation management plan (Urbis, 23 November 2023 and 19 September 2024 respectively) and the Historical Archaeological Impact Assessment (Urbis, 28 May 2024) and the Archaeological Test Excavation Report (AMAC Archaeological, August 2024) result in no adverse impact to the heritage item, or to the Potts Point Heritage Conservation Area.

17. A condition of consent requires approval under s 60 of the Heritage Act 1977 (conditions 5).

Design excellence

18. Pursuant to cl 6.21C(2) of the SLEP 2012, which deals with design excellence requirements, on the basis of the advice by the parties’ architectural, planning, heritage and urban design experts, I am satisfied that the amended design exhibits design excellence.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. I have considered whether the site is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the Statement of Environmental Effects (Planning Lab, 29 November 2023), the Heritage Impact Statement (Urbis, 23 November 2023) and the preliminary site investigation report (Hayes Environmental Consultants, 12 June 2024), I accept that the site has been used as residential purposes for a substantial period of time and is unlikely to be contaminated.

State Environmental Planning Policy (Sustainable Buildings) 2022

20. The application is accompanied by a BASIX certificate (A1377056 dated 22 November 2023), prepared by Luigi Rosselli Pty Ltd, in accordance with the State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by the Arboricultural Impact Assessment (Jacksons Nature Works, 23 August 2024) which addresses the removal of vegetation. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

22. Chapter 6 of the Biodiversity SEPP applies to the site as it is located within the Sydney Harbour Catchment.

23. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised.

24. The Water Sensitive Urban Design report (Stellen Civil Engineering, 9 April 2024) and the stormwater drawings (DR-000, DR-101, DR-102, DR-103, DR-104, and DR-105) and the conditions of consent provide confirmation and controls for the management of stormwater, and I accept and am satisfied that the proposal’s effect on the quality of water entering Sydney Harbour will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody will be minimised.

25. For similar reasons as set out above, I have also considered those matters at s 6.7 of the Biodiversity SEPP and I am satisfied the direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, will be kept to the minimum necessary to carry out the development, that the development will not have an adverse impact on aquatic reserves, or cause erosion of land abutting a natural waterbody of the sedimentation of a natural waterbody.

26. I consider that the proposed development will not have an impact on recreational land uses or access to public land, as set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. In accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, I note that the development application has a been referred to the relevant electricity supply authority for the area in which the development is to be carried out, and that the parties have taken into consideration the response received.

Other considerations

28. I note the advice of the parties that owner’s consent for the application has been provided, and that the development application was publicly exhibited from 11 January 2024 to 9 February 2024, and that nine written submissions were received.

29. I am satisfied that the submissions have been taken into consideration by the parties in their review of the proposal and the assessment of the amended documents.

30. The Court notes:

1. That pursuant to section 37(1) of the Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation), the Applicant applied to the Respondent consent authority for an amendment to Development Application No D/2023/1109 (the development application), in the following respects:

1. the inclusion of amended architectural drawings prepared by Luigi Rosselli Architects in replacement of corresponding earlier drawings as follows:

Drawing Number	Issue	Drawing Name	Date
DA-00	E	Cover sheet	10.10.24
DA-01	C	Site analysis	04.10.24
DA-02	D	Site plan	04.10.24
DA-03	C	Basement plan	20.09.24
DA-04	B	Lower ground floor plan	20.09.24
DA-05	D	Ground floor plan	04.10.24
DA-06	D	First floor plan	20.09.24
DA-07	D	Roof plan	10.10.24
DA-08	C	Elevation north & east	20.09.24
DA-09	C	Elevation south & west	20.09.24
DA-10	C	Section aa & cc	04.10.24
DA-11	C	Section bb & dd	20.09.24
DA-12	B	Areas calculation	20.09.24
DA-13	B	Deep soil calculation	20.09.24
DA-14	-	Photomontage-contextual	28.11.23
DA-15	-	Photomontage-Wylde Street	28.11.23
DA-16	-	Photomontage-Cowper Wharf Roadway	28.11.23
DA-17	A	Materials page 1	15.07.24
DA-18	A	Materials page 2	15.07.24
DA-19	-	Solar diagrams – 21 June, 9am	28.11.23
DA-20	-	Solar diagrams – 21 June, 12pm	28.11.23
DA-21	-	Solar diagrams – 21 June, 3pm	28.11.23
DA-22	B	Section ee	20.09.24
DA-23	A	Section ff	23.08.24
DA-24	A	Section gg – gatehouse long section	23.08.24
DA-25	A	Section hh – gatehouse short section	23.08.24
DA-26	A	Reflected ceiling plan – proposed ground	23.08.24
DA-27	B	Reflected ceiling plan – proposed first	20.09.24
DA-28	B	Lantern elevation	20.09.24
DA-29	B	Lantern cross section & detailed elevation	20.09.24
DA-30	B	Widows walk detail	23.08.24
DA-31	C	Total floor area calculation	20.09.24
DA-32	-	Section – edge of forecourt	15.07.24
DA-33	B	Section proposed wall Cowper Wharf Rd	10.10.24
DA-34	A	Section proposed wall Wylde St	23.08.24
DA-35	B	Section cellar detail	23.08.24
DA-36	B	3D image – relationship with tarana	20.09.24
DA-37	A	Total floor area calculation clause 5.9(4)	04.09.24
DA-38	A	3D image – northern elevation	20.09.24
DA-39	A	Detailed drawings 1	20.09.24
DA-40	A	Detailed drawings 2	20.09.24
DA-41	A	Detailed drawings 3	20.09.24
DA-42	A	Detailed drawings 4	20.09.24
DA-43	A	North elevation comparison	20.09.24
DA-44	A	Site plan comparison	20.09.24
DA-45	A	3D model images	20.09.24

2. the inclusion of amended landscape drawings prepared by Dangar Barin Smith in replacement of corresponding earlier drawings as follows:

Drawing Number	Rev	Drawing Name	Date
LP01-D4223	J	Cover Page Landscape	10.10.24
LP02-D4223	J	Landscape Site Plan	10.10.24
LP03-D4223	J	Landscape Curtilage Plan	10.10.24
LP04-D4223	J	Basement Plan Landscape	10.10.24
LP05-D4223	J	Basement Western Landscape Elevation	10.10.24
LP06-D4223	J	Basement Northern Landscape Elevation	10.10.24
LP07-D4223	J	Lower Ground Floor Landscape	10.10.24
LP08-D4	J	Ground Floor Landscape	10.10.24
LP09-D4223	J	First Floor Landscape	10.10.24
LP10-D4223	J	Elevated Path Detail – Section A-A	10.10.24

3. the inclusion of amended engineering drawings prepared by Stellen Civil Engineering in replacement of corresponding earlier drawings as follows:

Drawing Number	Issue	Drawing Name	Date
DR-000	3	Legend	21.08.24
DR-101	4	Pipe Layout – Sheet 1	18.09.24
DR-102	3	Pipe Layout – Sheet 2	18.09.24
DR-103	0	WSUD Catchment	24.05.24
DR-104	0	Details	15.08.24
DR-105/1	1	New Pipe Extension – 5%AEP Section	21.08.24
DR-105/2	1	New Pipe Extension – 1%AEP Section	21.08.24

4. the inclusion of the letter re ‘1 & 1B Wylde Street, Potts Point, Bomera Research for dating of Palm Trees’ prepared by AMAC Archaeological (undated);

5. the inclusion of the memorandum re solar panels prepared by Australia Wide Solar dated 10 September 2024;

6. the inclusion of the report re ‘Pre DA Structural Report / Construction Impact Statement)’ prepared by GZ Consulting Engineers Pty Ltd dated 19 September 2024;

7. the inclusion of the addendum to the conservation management plan prepared by Urbis dated 19 September 2024;

8. the inclusion of the report re ‘Arborist Services for Aremob Pty Ltd v City of Sydney – Root Mapping at 1 Wylde Street, Potts Point’ prepared by Jacksons Nature Works dated 19 September 2024;

9. the inclusion of the technical memorandum re ‘DA Tunnelling Feasibility Study Tech Memo 001’ prepared by SMEC dated 19 September 2024;

10. the inclusion of the report re ‘Bomera Landscape Gardens Historical Analysis – Update Palm Trees’ prepared by Urbis dated 13 September 2024;

11. the inclusion of the ‘Technical note on proposed stormwater discharge into Cowper Wharf Road’ prepared by Stellen Civil Engineering dated 1 September 2024;

12. the inclusion of the letter re ‘Bomera Architectural Design Note in response to SOFAC’ prepared by Luigi Rosselli Architects dated 24 July 2024;

13. the inclusion of the ‘Driveway plan and section’ engineering drawing ‘DR-106’, Rev. 2, dated 21 August 2024, prepared by Stellen Civil Engineering in replacement of the earlier corresponding drawing;

14. the inclusion of the letter re ‘Landscape Curtilage Statement for 1 Wylde Street, Potts Point’ prepared by Dangar Barin Smith dated 11 June 2024;

15. the inclusion of the report re ‘Water Sensitive Urban Design for the proposed alteration ad addition at 1b Wylde Street, Potts Point NSW’ prepared by Stellen Civil Engineering dated 9 April 2024;

16. the inclusion of the letter re ‘1, 1B Wylde Street, Potts Point – LEC Case number 2024/00104744 – Responses to the Statement of Facts and Contentions (Stormwater Management and Flooding)’ prepared by Stellen Civil Engineering dated 24 May 2024;

17. the inclusion of the letter re ‘Technical note on proposed stormwater discharge into Cowper Wharf Road’ prepared by Stellen Civil Engineering dated 22 August 2024;

18. the inclusion of the ‘Acid Sulfate Soils Assessment’ prepared by Crozier Geotechnical Consultants dated 28 March 2024;

19. the inclusion of the ‘Arboricultural Impact Assessment Report’ prepared by Jacksons Nature Works dated 23 August 2024;

20. the inclusion of the ‘Tree Management Plans & Specifications’ prepared by Jacksons Nature Works dated 23 August 2024;

21. the inclusion of the report re ‘Arborist Services for Aremob Pty Ltd v City of Sydney – Root Mapping at 1 Wylde Street, Potts Point’ prepared by Jacksons Nature Works dated 21 July 2024;

22. the inclusion of the report re ‘Arborist Services for Aremob Pty Ltd v City of Sydney – Root Mapping at 1 Wylde Street, Potts Point’ prepared by Jacksons Nature Works dated 24 July 2024;

23. the inclusion of the ‘Tree Transplanting Feasibility & Methodology Statement’ prepared by Downunder Tree Services dated June 2024;

24. the inclusion of the ‘Historical Archaeological Impact Assessment’ prepared by Urbis dated 28 May 2024;

25. the inclusion of the report re ‘Archaeological Research Design s60 – Heritage Act NSW 1977’ prepared by AMAC Archaeological dated 20 May 2024;

26. the inclusion of the approval under section 60 of the Heritage Act 1977 for test excavation dated 11 July 204;

27. the inclusion of the ‘Archaeological Test Excavation Report s60 – Heritage Act NSW 1977’ prepared by AMAC Archaeological dated 23 August 2024;

28. the inclusion of the letter re ‘Bomera – 1 Wylde St Potts Point (SHR01400) s60 HMS 6453 Condition 10’ prepared by AMAC Archaeological dated 16 August 2024;

29. the inclusion of the ‘Stage 1 Preliminary Environmental Site Investigation (Site Contamination Appraisal)’ prepared by Hayes Environmental Consulting Pty Ltd dated 12 June 2024;

4. the inclusion of the ‘Geotechnical Assessment of groundwater flow through site for proposed alterations and additions at 1 & 1b Wylde Street, Potts Point’ prepared by Crozier Geotechnical Consultants dated 12 June 2024;

5. the inclusion of the ‘Bomera Landscape Gardens Historical Analysis’ prepared by Urbis dated August 2024;

6. the inclusion of the traffic ‘Assessment Letter’ Transport and Traffic Planning Associates dated 27 May 2024;

7. the inclusion of the report re ‘Arborist Services for Aremob Pty Ltd v City of Sydney – Root Mapping at 1 Wylde Street, Potts Point’ prepared by Jacksons Nature Works dated 10 October 2024;

8. the inclusion of the letter re ‘Bomera – further engineering requirements – following conciliation conference’ prepared by SMEC dated 8 October 2024; and

9. the inclusion of the letter re ‘Transportation / crane locations’ prepared by Dr. Treegood dated October 2024;

(the amended application).

2. That pursuant to section 38(1) of the EP&A Regulation, the Respondent consent authority has approved the Applicant to amend the development application.

Conclusion

31. I have considered the submissions made by the parties in the Jurisdictional Statement submitted to the Court on 8 November 2024 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.

32. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

33. 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.

Orders

34. The orders of the Court are:

1. The appeal is upheld.

2. Development Application D/2023/1109 as amended, for demolition of garage, pool, surrounding garden, removal of 33 trees, transplantation of four trees and retention of 19 trees on the site, and the construction of a new secondary dwelling, excavation for a basement level with garage, lower ground level, swimming pool and associated tree removal and landscaping work at 1 and 1B Wylde Street, Potts Point NSW, legally described as Lots 1 and 3 in DP1053056, is determined by the grant of consent, subject to the conditions set out in Annexure A.

3. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the development as agreed or assessed in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979.

N Macken

Acting Commissioner of the Court

Annexure A

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Decision last updated: 05 December 2024