Bettar v Council of the City of Sydney

[2014] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bettar v Council of the City of Sydney [2014] NSWLEC 1151

Hearing dates:

28 July, 2014

Decision date:

29 July 2014

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. By consent, the appeal is upheld.

2. Development consent is granted to Development Application D/2013/2004 dated 20 December 2013 for alterations and additions to 35-39 Mountain Street, Ultimo for the purposes of residential apartments and ground floor commercial/retail units subject to conditions of consent at Annexure A.

3. The exhibits, other than exhibits A and 8, are returned.

Catchwords:

DEVELOPMENT APPLICATION: consent orders; resident objector.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Mr Paul Bettar (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Ms S. Duggan SC (Applicant)
Mr A. Pickles Barrister (Respondent)
Conomos Legal (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

10121 of 2014

Judgment

1. COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979, comes before the Court for consent orders in relation to Development Application No. D/2013/2004 for the adaptive re-use of a 4 storey former warehouse building to a mixed use residential and commercial building including new levels 5 and 6 (the proposal) at 35-39 Mountain Street, Ultimo (the site).

1. The appeal was subject to mandatory conciliation on 27 March 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 2 May, 2014, pursuant to s 34(4) of the LEC Act.

1. Following the commencement of the hearing on site, the parties agreed to enter into consent orders, based on agreed amendments to the proposal. The proposal is amended as follows (as described in condition 2):

• the cross-ventilation system is to be modified to ensure that a minimum of 20 units are passively cross ventilated with internal ducting;
• details of the Level 4 finished floor levels, balcony and balustrade arrangements are to be submitted and approved by Council;
• six of the studio apartments on levels 1 - 3 are to be amalgamated into three 2 bedroom apartments, with a minimum width of 10.1m;
• units labelled 4.01 and 4.02 are to annotated as 3 bedroom units.

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35 - 6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

1. In accordance with the Practice Note, one resident objector provided evidence on site at the commencement of the hearing and the Court, in the company of the parties, viewed the site from the objector's apartment on the fourth floor of the building to the west of the site. The objector is concerned that the additional floors of the proposal will obstruct views of the city skyline from her apartment. The objector is also concerned that the proposal will obstruct views from the communal outdoor living space on the sixth floor.

1. There is an extant consent for the site, no. 391/2012, which has a similar height to the proposal and which would obstruct the city skyline views from the objector's apartment. The views from the communal outdoor living space are to the north and south and will not be affected by the proposal.

Height

1. The proposal has a maximum height of RL28.57, which represents a variation of approximately 4.47m from the maximum height development standard of 18m (Sydney Local Environment Plan 2012 [LEP 2012] Height Map).

1. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012); that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012); and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

1. I am satisfied that the written request by the applicant (exhibit G) to contravene the maximum height development standard in LEP 2012 adequately addresses the matters required to be demonstrated and that the proposal is consistent with the objective of the maximum height development standard, to ensure that the height of development is appropriate to the conditions of the site and its context, to ensure appropriate height transitions between buildings in heritage conservation areas and to promote the sharing of views.

Conclusion

1. In considering the proposal and the agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objector, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders

1. The orders of the Court are:

(1)   By consent, the appeal is upheld.

(2)   Development consent is granted to Development Application D/2013/2004 dated 20 December 2013 for alterations and additions to 35-39 Mountain Street, Ultimo for the purposes of residential apartments and ground floor commercial/retail units subject to conditions of consent at Annexure A.

(3)   The exhibits, other than exhibits A and 8, are returned.

____________

Susan O'Neill

Commissioner of the Court

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Annexure A

Decision last updated: 29 July 2014