Arrow Marine Building Pty Ltd v The Council of the City of Sydney

[2023] NSWLEC 1368

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arrow Marine Building Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1368

Hearing dates:

Conciliation conference held on 23 June 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application D/2021/1445, as amended, seeking additional use of a function centre to an existing restaurant, on Lot 2 in DP 1050360, Lot 22 in SP 69951 and Lot 11 in DP 883135, otherwise known as 26-28 and 34 Pirrama Road, Pyrmont, respectively is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – additional use to existing restaurant – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 2.3, 5.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.24

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Texts Cited:

Sydney Community Participation Plan 2019

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Arrow Marine Building Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sydney City Council (Respondent)

File Number(s):

2022/315088

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application D/2021/1445 (the DA) by the Council of the City of Sydney (the Council), which seeks additional use of a function centre to an existing restaurant, located on Lot 2 in DP 1050360, Lot 22 in SP 69951 and Lot 11 in DP 883135, otherwise known as 26-28 and 34 Pirrama Road, Pyrmont (hereafter the site). It is noted that no works are proposed or consented to on the portion of land known as 26-28 Pirrama Road, Pyrmont.

Background

2. The DA was lodged with Council on 7 December 2021. The original DA was notified to residents, with 77 submissions received, including 33 submissions in objection and 44 submissions in support.

3. The DA has been internally reviewed by Council and was referred to the City of Sydney Local Planning Panel (the Panel), that recommended to refuse the DA on 12 October 2022.

4. The applicant appealed against the (deemed) refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). It is noted that the DA was refused by Council after the Class 1 appeal for the DA was lodged.

5. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held in person before myself as Duty Commissioner.

7. Based on the amended DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agreed that the contentions of Council have been considered in a merit assessment and are resolved, and the issues raised by objectors have also been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application D/2021/1445, with conditions. The Court is advised that the Council has delegation from the Panel to enter into the agreement.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied of all relevant jurisdictional requirements, to grant consent to Development Application D/2021/1445, subject to conditions in Annexure A.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following relevant jurisdictional requirements have been specifically addressed:

1. Sydney Local Environmental Plan 2012 (SLEP):

1. Pursuant to cl 2.3 of the SLEP, the proposed development is situated over land zoned E2 Commercial Core. The proposed development, as described to the Court, is permissible with consent and has had regard to the objectives of the zone.  The amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the SLEP.

2. The site contains a building listed as the ‘Arrow Marine Building I1250’, an item of heritage significance, pursuant to cl 5.10 of the SLEP. The DA relies on a Heritage Impact Statement, prepared by Design 5 Architects that supported a previous consent for the site. The DA seeks no building works that would impact the heritage significance of the item, and the objectives of cl 5.10 are satisfied.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the use of the site being historically for commercial purposes, as assessed by Council, together with the agreed conditions of consent, the relevant requirements of s 4.6 of the SEPP Resilience are addressed. It is noted that the DA does not propose any works that are at or below ground surface.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the Sydney Harbour catchment and within the Foreshores Waterways Area, pursuant to s 6.24 of the SEPP Biodiversity. The DA proposes no building works or results in any impacts to the Sydney Harbour catchment, therefore the relevant provisions of Ch 6 are satisfied.

4. Sydney Development Control Plan 2012 (SDCP):

1. The original DA was publicly notified in accordance with the SDCP and Council’s Community Participation Plan 2019, with 77 submissions received. The issues raised by the objectors in written and oral submission have been considered by the Council in undertaking its merit assessment of the DA. It was explained that the Council is satisfied that the issues raised by residents have been addressed, and where appropriate amendments made to the DA.

2. The issue of noise impact from patrons, as raised in the contentions and by residents, has been assessed in an Acoustic Assessment report by Acoustic Logic, dated 20 April 2023. The amended application is also supported by an updated Plan of Management by SJB Architects, dated 26 April 2023. The Council considers the potential for adverse noise impacts on surrounding residents is sufficiently mitigated.

3. The relevant requirements of the SDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent.

10. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners. All proposed works are contained within the site and constrained to the portion of land known as 34 Pirrama Road, Pyrmont, as described on condition 2(b) of Annexure A.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. The Council has undertaken an appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention and by the residents in objection have been addressed by the amendments made to the DA and supporting documents.

13. I am satisfied, based on the evidence before me and as explained by the parties, that there are no jurisdictional impediments to this agreement and that Development Application D/2021/1445 should be granted consent, subject to conditions of consent in Annexure A.

14. 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.

15. The Court notes that:

1. That the Council of the City of Sydney, as the relevant consent authority has agreed, under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application D/2021/1445 and to rely on the following documents described below:

Plan/Document Reference	Details	Date
Revised Acoustic Assessment	Prepared by Acoustic Logic	20 April 2023
Updated Plan of Management	Prepared by SJB Architects and signed by director of Applicant	Dated 26 April 2023 and signed 27 April 2023
Development Application Plans, being DA 01 Revision K, DA 02 Revision K and DA 03 Revision L	Prepared by Design 5 Architects	27 April 2023

2. That the applicants have filed the amended DA with the Court on 28 April 2023.

16. The Court orders that:

1. The appeal is upheld.

2. Development Application D/2021/1445, as amended, seeking additional use of a function centre to an existing restaurant, on Lot 2 in DP 1050360, Lot 22 in SP 69951 and Lot 11 in DP 883135, otherwise known as 26-28 and 34 Pirrama Road, Pyrmont, respectively is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 14 July 2023