Barakate v The Council of the City of Sydney

[2024] NSWLEC 1378

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barakate v The Council of the City of Sydney [2024] NSWLEC 1378

Hearing dates:

Conciliation conference 20, 21 May 2024

Date of orders:

09 July 2024

Decision date:

09 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No D/2023/668, as amended, for the construction of a new 3 storey dwelling house, with excavation for a basement level garage, swimming pool and associated tree removal at 22 Martin Road, Centennial Park legally known as Lot 30 in DP 4598, is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: new residential dwelling development – conciliation conference – amended plans – agreement reached between the parties – orders made.

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 23, 27

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

State Environmental Planning Policy No 55 – Remediation of Land

Sydney Local Environmental Plan 2012, cll 2.7, 4.4, 4.6, 5.10, 6.21C, 7.14, Sch 5

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:

City of Sydney Community Participation Plan 2020

Sydney Development Control Plan 2012 

Category:

Principal judgment

Parties:

Michael Barakate (First Applicant)
Johanna Barakate (Second Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
M Staunton (First and Second Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (First and Second Applicant)
City of Sydney Council (Respondent)

File Number(s):

2023/319647

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Michael and Johanna Barakate (Applicants) against the deemed refusal of development application D/2023/668. As amended the development application seeks consent for demolition of all existing structures, removal of existing trees, construction of a new 3 storey dwelling house, with excavation for a basement level and garage, construction of a swimming pool, and landscaping work. The development is proposed at 22 Martin Road, Centennial Park and is legally described Lot 30 Sec 2 DP 4598 (Site).

2. A conciliation conference was held between the parties on 20, 21 May 2024 pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the following basis.

Preconditions to the grant of consent

1. The development application was lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. The development application was advertised and notified between 10 August and 8 September 2023. Eighteen (18) submissions were received objecting to the proposed development. The plans proposed for approval in this judgment have been amended and additional information provided, partly in response to the concerns raised by submissions. Under the City of Sydney Community Participation Plan 2020, if a development application is amended prior to determination, it will be re-notified only if the amendments are considered to result in significant additional environmental impacts. I accept the agreement of the parties that renotification of the amended development application is not required. Further, I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. There is no evidence within Council’s records that the land has been used for any purposes listed in Table 1 of the Managing Land Contamination Planning guidelines, State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). The historical use of the site was as part of the grounds of a residential dwelling. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

4. The development application includes a BASIX Certificate 1394654S_02 dated 18 May 2024. This certificate confirms that the project passes the BASIX requirements. The BASIX Certificate satisfies the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the Development Application was made.

Sydney Local Environmental Plan 2012

4. Pursuant to Sydney Local Environmental Plan 2012 (LEP) the site is located within the R2 Low Density Residential zone in which dwelling houses are permissible with development consent. In determining the development application, I have given consideration to the objectives of the R2 Low Density Residential zone. Further, pursuant to cl 2.7 of LEP 2012 demolition is permitted with consent.

5. As the maximum height of the proposed dwelling is 10.39m, the amended development application is compliant with the maximum building height for the site of 11m: cl 4.3 of LEP 2012.

Variation to Floor Space Ratio

6. Clause 4.4 ‘Floor space ratio’ of LEP 2012 sets a maximum floor space ratio (FSR) for the site of 0.6:1. The amended development application has an FSR of 0.63:1 and relies on cl 4.6 to vary the FSR standard. The variation to the FSR, some 27.25m², is contained in additional floor space provided in the attic of the proposed dwelling. The Applicant relies on a written request prepared by GSA Planning, dated May 2024, in support of the variation. The written request addresses the matters set out at cl 4.6(3) of LEP 2012, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

1. Pursuant to cl 4.6(3) of LEP 2012, the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(3) being:

1. that compliance with the development standard in clause 4.4 of LEP 2012 is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a) of LEP 2012); and,

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in clause 4.4 of LEP 2012 (clause 4.6(3)(b) of LEP 2012).

2. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the FSR control in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the R2 Low Density Residential zone for the reasons detailed in the written request.

5. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the maximum FSR standard in LEP 2012.

Heritage significance of the area

7. Before the grant of development consent, cl 5.10(4) of LEP 2012 requires the consent authority to consider the effect of a proposed development on the heritage significance of a heritage conservation area or item. The subject site is:

1. located within the Martin Road heritage conservation area; and

2. part of a local heritage item known as “Romahapa” (I137) which encompasses 22-24 Martin Road. The Site contains part of the garden and the rear garage of the dwelling at 24 Martin Road.

8. Opposite the site is Centennial Park, which is identified on the State Heritage Register as an item of State heritage significance (State Heritage Register Number 01384), and is described as ‘Centennial Park, Moore Park, Queens Park’. Further, adjoining the Site to the north east is 20 Martin Road which is identified on the State Heritage Register as an item of State heritage significance (State Heritage Register Number 01719), and is described as ‘The Patrick White House’. It is also identified in Schedule 5 of LEP 2012 as an item of State heritage significance (Item Number I136), and is described as ‘House “Highbury” including interior and grounds’.

9. The Site is located in close vicinity of several other local heritage items with many of the properties along the western side of Martin Road being heritage listed and comprising of large front gardens behind stone, brick and metal fencing.

10. The development application is accompanied by a Heritage Impact Report (HIR) which concludes that the proposed development is unlikely to have a detrimental impact on the heritage values of the nearby listed items or the heritage conservation area. Further, the heritage contentions in the proceedings were the subject of joint reporting by the parties’ heritage experts. The agreed conclusion of the heritage experts is that the effect of the proposed development on the heritage significance on the Site, nearby heritage items and the Centennial Park heritage conservation area, is acceptable. With the benefit of the HIR and the expert evidence in determining the development application I am satisfied that the impact of the proposed development on the heritage significance of the proximate heritage items and the heritage conservation area is acceptable.

Design excellence

11. Clause 6.21C ‘Design Excellence’ in LEP 2012 applies to the site and requires that development consent cannot be granted unless, in the opinion of the consent authority, the proposed development exhibits design excellence. The amended development application was the subject of joint conferencing by the parties’ town planning and urban design experts. In their joint report, with reference to the matters for consideration in cl 6.21C of LEP 2012, they conclude:

“22. The amended proposal is considered to exhibit design excellence.

23. As a result of the suite of changes made to the proposal and additional information provided in addressing contentions, the amended plans satisfy the requirements of Clause 6.21C of the LEP.

24. The amended plans propose a reduced building envelope in keeping with the context of the streetscape and provides a more sympathetic scheme in response to surrounding heritage items and heritage conservation area pursuant to Clause 6.21C(2)(a) of the LEP.

25. The reduced scale of the of the sunken garden and muted colouring of the edge detail improves and enhances the development’s interface with the public domain pursuant to Clause 6.21C(2)(b) of the LEP.

26. The amended plans have resolved heritage, streetscape and visual privacy issues, whilst additional analysis has been submitted which demonstrates that the proposed development will not cause unreasonable environmental impacts with regards to overshadowing and privacy impacts.

27. Application of a standard materials and finishes condition to the consent will provide the outstanding detail required, prior to CC.”

12. With the benefit of the expert evidence and following a review of the amended development application I am satisfied the development exhibits design excellence for the following reasons:

1. I accept the agreement of the experts as extracted above;

2. The form, materials and detailing of the amended proposal achieve a high standard of architectural design;

3. The form and external appearance of the amended proposal are responsive to the site’s opportunities and constraints, including the dense urban context of the site;

4. The form of the amended proposal is responsive to maintaining view corridors from adjoining development wherever possible;

5. The land is suitable for the development because a residential use is maintained, and the design is responsive to the built environment including the identified values of nearby heritage items and heritage conservation area;

6. The height is compliant with the height of building development standard for the site, and the FSR variation is in a form which reinforces the character of the locality;

7. There are no unreasonable amenity impacts on adjoining development, considering the density and urban character of the locality;

8. The amended proposal achieves an appropriate interface at ground level between the built form and the public domain as the site’s entry and circulation is clearly legible; and,

9. The landscaping is integrated into the architectural design of the amended proposal.

Other matters for consideration

13. Clause 7.14 of LEP 2012 relates to Acid Sulfate Soils. The Site is identified as being affected by Acid Sulfate Soils, Class 5, on the Acid Sulfate Soils Map. However, the works proposed in the development application are not within 500m of adjacent Class 1, 2, 3 or 4 land and an acid sulfate soils management plan is not required. The development application is accompanied by a Geotechnical Investigation Report which concludes that, based on their investigations, no Acid Sulfate Soils will be intersected during the construction of the proposed works and, no impacts are anticipated to the water table. Clause 7.14 is satisfied.

14. Sydney Development Control Plan 2012 (DCP 2012) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2012. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

Conclusion

15. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

16. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

17. The Court notes that:

1. The Respondent, City of Sydney Council, approves pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the amendment of development application no. D/2023/668 in accordance with the amended plans and additional information listed below:

1. Amended Architectural Plans prepared by Luigi Rosselli:

Drawing No.	Drawing	Issue
DA00	Cover	D
DA01	Site Analysis	B
DA02	Site and Roof Plan	B
DA03	Basement Floor Plan	C
DA04	Ground Floor Plan	B
DA05	First Floor Plan	B
DA06	Attic Floor Plan	B
DA07	Roof Plan	B
DA08	East and Street Elevations	B
DA09	West and Lane Elevations	C
DA10	South Elevation	B
DA11	North Elevation	B
DA12	Section aa and dd	B
DA13	Section bb and cc	C
DA14	Area Calculations	B
DA15	Schedule of External Finishes	A
DA16	Photomontage	A
DA17	Shadow Diagrams - June - 9am	A
DA18	Shadow Diagrams - June - 12pm	A
DA19	Shadow Diagrams - June - 3pm	A
DA20	Shadow Diagrams - March - 9am	A
DA21	Shadow Diagrams - March - 12pm	A
DA22	Shadow Diagrams - March - 3pm	A
DA23	Shadow Diagrams - September - 9am	A
DA24	Shadow Diagrams - September - 12pm	A
DA25	Shadow Diagrams - September - 3pm	A
DA26	Shadow Diagrams - June - 10am	A
DA27	Shadow Diagrams - June - 11am	A
DA28	Shadow Diagrams - June - 1pm	A
DA29	Shadow Diagrams - June - 2pm	A
DA30	Front gate, Fence, Awning detail	A
DA31	Streetscape Character	A
DA32	Heritage Precedents	A
DA33	Total Floor Area Calculations	C
DA34	Roof Garden Sightlines	A
DA35	Street Sightlines 1	A
DA36	Street Sightlines 2	A
DA37	Rear Sightlines	A

2. Landscape Plans prepared by Dangar Barin Smith dated 1 May 2024:

Drawing No.	Drawing	Issue
LP01-D3023	Cover Page	A
LP02-D3023	Ground Floor Landscape Plan	A
LP03-D3023	First Floor and Attic Floor Landscape Plan	A
LP04-D3023	Deep Soil Calculations	A
LP05-D3023	Landscape Details	A

3. Construction Methodology - Boundary Wall Demolition prepared by GZ Consulting Engineers dated 15 April 2024;

4. Driveway Design Plans prepared by Stellen - Rev 1 dated 2 May 2024:

Drawing No.	Drawing	Issue
CV-100	Legend	1
CV-101	Road Long Section	1
CV-103	Swept Path - Vehicle B85	1

5. Stormwater Management Plan prepared by Stellen - Rev 3 dated 2 May 2024:

Drawing No.	Drawing	Issue
DR-000	Legend	2
DR-001	Pipe Layout	3
DR-002	Details	2
DR-003	Site Areas and Discharge Results	0

6. Clause 4.6 Variation Request - Floor Space Ratio prepared by GSA Planning dated May 2024;

7. Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 1 May 2024;

8. Basix Certificate number 1394654S_02 issued 18 May 2024.

2. The Applicant provided the Amended Application to the Court on 20 May 2024.

3. The Applicant's written request, pursuant to cl 4.6 of the LEP 2012, seeking to vary the development standard for FSR as set out at cl 4.4 of the LEP 2012, is upheld.

Orders

18. The Court orders that:

1. The appeal is upheld.

2. Development Application No D/2023/668, as amended, for the construction of a new 3 storey dwelling house, with excavation for a basement level garage, swimming pool and associated tree removal at 22 Martin Road, Centennial Park legally known as Lot 30 in DP 4598, is determined by the grant of consent subject to the conditions in Annexure A

I certify that this and the preceding 11 pages are a true copy of my reasons for judgment.

……………………….

D Dickson

Commissioner of the Court

Annexure A

**********

Decision last updated: 09 July 2024