Bettar v Council of the City of Sydney

[2020] NSWLEC 1238

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bettar v Council of the City of Sydney [2020] NSWLEC 1238
Hearing dates:	Conciliation conference on 28 May 2020
Date of orders:	02 June 2020
Decision date:	02 June 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on the amended plans set out in Annexure A. (2) The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (3) The appeal is upheld. (4) Deferred Commencement Development Consent is granted to development application No. D/2019/903 for alterations and additions to the existing industrial building to provide for new retail shop, including internal changes, construction of two additional levels and carparking on the land known as 3 Reserve Street, Beaconsfield and being all that land comprised in Lot 1 in DP 125106, subject to the conditions of consent in Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to industrial building – 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
Texts Cited:	Development Guidelines for Providing Community Infrastructure in Green Square (December 2012)
Category:	Principal judgment
Parties:	Paul Bettar (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: C Collett (Solicitor) (Applicant) A Simpson (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2019/326598
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing industrial building for the purpose of a retail shop at 3 Reserve Street, Beaconsfield. The alterations and additions include the provision of car parking at the ground floor level, internal changes, and construction of two additional levels. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the 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. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 28 May 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended design lowers the roof to comply with the height development standard and to reduce the visual bulk of the development, as well as to achieve an improved height transition from the site to nearby single dwellings. The amendments to the design also include removing an outdoor terrace to the southern elevation that was proposed in the previous design.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purpose of a shop, which is a use that is permissible with development consent in the R1 General Residential zone in which the site is located, pursuant to the Sydney Local Environmental Plan 2012 (“SLEP 2012”).

• The proposed development benefits from cl 6.14 of the SLEP 2012, which allows additional floor space on the site of 0.25:1 if certain preconditions are met. As a result, the applicable Floor Space Ratio (“FSR”) standard for the proposal is 1.25:1, with which the proposal development complies. I am satisfied that this additional floor space is permitted to allow the standard of 1.25:1 to apply pursuant to cl 6.14 because:

1. The proposed development is consistent with the objectives of cl 6.14 by including entry into a Voluntary Planning Agreement that provides a contribution for works to provide Green Square community infrastructure. Consistent with subcll 6.14(3)(b) and (c), this infrastructure is reasonably necessary for the Council to achieve what is sought in the Development Guidelines for Providing Community Infrastructure in Green Square (December 2012). Whilst the infrastructure cannot be provided on the site, which is completely developed, it can be achieved through a contribution towards the delivery of other community infrastructure off the site but within Green Square.

2. The proposed development is consistent with objective (b) of cl 6.14 because it adopts a scale that aligns with the established character of Reserve Street, has a façade that is not detrimental to its compatibility with the area, and is of a height plane that transitions appropriately to the nearby single dwellings.

3. The proposed development is consistent with objective (c) of cl 6.14 by providing for an intensity of development that is commensurate with the capacity of existing and planned infrastructure as it will not place undue strain on the local road network, and is located in close proximity to public transport services including Green Square Railway Station and multiple bus routes.

• The development is located in a heritage conservation area and the effect of the development on the heritage significance of the heritage conservation area has been considered, as required by cl 5.10(4) of SLEP 2012. A Heritage Impact Assessment report dated 13 August 2019 accompanies the Class 1 Application and concludes that the proposal will not result in any detrimental impact on the heritage items in the vicinity of the site or on the heritage conservation area. Further, the reduction in height in the amended plans results in a development that is respectful of the low scale contributory buildings near the site, and ensures that the development is compatible with the character of the Hillview Estate Heritage Conservation Area and the Beaconsfield locality.

• The proposed development, as amended, complies with cl 6.21 of the SLEP 2012 with regards to design excellence. In particular, it has a roof plane that is responsive to the existing character of the heritage conservation area and the external design achieves an appropriate transition between the site and nearby single dwellings, in keeping with the patterns of development in the streetscape.

• The proposal complies with all other relevant development standards in the SLEP 2012.

• The documents lodged with the Class 1 Application demonstrate that the site can be made suitable for the development, in satisfaction of cl 7 of the State Environmental Planning Policy No 55—Remediation of Land.

• The Council has indicated that the notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration.

5. 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 also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans set out in Annexure A.

2. The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The appeal is upheld.

4. Deferred Commencement Development Consent is granted to development application No. D/2019/903 for alterations and additions to the existing industrial building to provide for new retail shop, including internal changes, construction of two additional levels and carparking on the land known as 3 Reserve Street, Beaconsfield and being all that land comprised in Lot 1 in DP 125106, subject to the conditions of consent in Annexure B.

………………………

J Gray

Commissioner of the Court

Annexure A (2024709, pdf)

Annexure B (227599, pdf)

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Decision last updated: 02 June 2020