Blackstone v The Council of the City of Sydney

Case •

[2023] NSWLEC 1780

•

20 December 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Blackstone v The Council of the City of Sydney [2023] NSWLEC 1780
Hearing dates: Conciliation conference on 8 December 2023
Date of orders: 20 December 2023
Decision date: 20 December 2023
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application D/2022/1359 for alterations and additions to a former warehouse building including demolition of existing floors, façade retention and construction of an additional three storeys, and use of the site as a commercial office premises at 19-21 Buckland Street, Chippendale, is determined by the grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to former warehouse and change use to commercial office premises – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 7.32, 8.7

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 4.3, 4.6, 7.13

Texts Cited:

City of Sydney Affordable Housing Program

Category:Principal judgment
Parties: Craig Blackstone (Applicant)
Sydney City Council (Respondent)
Representation:

Counsel:
C Reid (Solicitor)(Applicant)
M Flick (Solicitor)(Respondent)

Solicitors:
Reid & Vesely (Applicant)
Council of the City of Sydney (Respondent)
File Number(s): 2023/252636
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application D/2022/1359 for alterations and additions to a former warehouse building including demolition of existing floors, façade retention and construction of an additional three storeys, and use of the site as a commercial office premises (the Proposed Development) at 19-21 Buckland Street, Chippendale legally described as Lot 1 DP789207 (the Site).

  2. Development consent was granted to the Proposed Development by the Respondent via its Local Planning Panel on 20 September 2023, and a Notice of Determination – Approval for the Development Application was issued by the Respondent on 27 September 2023 (the Consent).

  3. The Applicant then sought to challenge Condition 14 of the conditions of the Consent, specifically seeking a reduction in the affordable housing contribution amount payable.

  4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which had been held on 8 December 2023. I presided over the conciliation conference.

  5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the Development Application subject to conditions.

  6. 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. 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.

  7. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 7.32 of the EPA Act to impose a condition of consent to make a contribution for affordable housing. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note from which I set out the reasons for my satisfaction below.

  9. Owner’s consent to the Proposed Development has been provided as evidenced by the letter signed by the Director and Secretary of George Hay Pty Ltd (ABN 68 000 412 242), being the owner of the Site, dated 16 December 2022 and filed with the Class 1 Application.

  10. The Site is zoned MU1 Mixed Use under the Sydney Local Environmental Plan 2012 (SLEP) and is identified as “Residual Land” on Sheet 9 of the Locality and Site Identification Map, pursuant to cl 7.13 of the SLEP. Accordingly, the terms of cl 7.13 of the SLEP apply to the Proposed Development and subcl (2) provides that the consent authority may impose a condition requiring a contribution for the purpose of affordable housing at the rate calculated in accordance with the City of Sydney Affordable Housing Program (the Program) adopted by the Council on 26 June 2023 (cl 7.13(4), SLEP) which came into effect on 24 November 2023. The Program applies to development applications made after 1 July 2022 and the Development Application the subject of this appeal was lodged with the Respondent on 3 January 2023.

  11. The Proposed Development was referred to the Local Planning Panel as the application proposed to exceed the 'Height of building's' development standard by more than 10%. The application proposed a 24.9% variation to the 15m height control pursuant to the SLEP.

  12. The Applicant filed the Class 1 Application on 9 August 2023 for the deemed refusal however, on 20 September 2023, the Respondent’s Local Planning Panel resolved that the Applicant’s variation request to clause 4.3 ‘Height of buildings standard’ in accordance with clause 4.6 ‘Exceptions to development standards’ of the SLEP be upheld and consent be granted to the Proposed Development, subject to conditions. The Consent was issued on 27 September 2023.

  13. The Applicant then advised the Respondent it sought to amend the Class 1 Application to limit the appeal to an appeal against Condition 14 ‘Affordable Housing Contribution’ of the Determination, by seeking a reduction in the amount of contribution payable. Condition 14 of the Consent requires an affordable housing levy contribution amount of $352,493.80 to be paid to Council prior to the issue of a Construction Certificate.

  14. Following discussions between the parties’ experts, the Respondent then undertook a recalculation of the square metre of the Total Floor Area (TFA) of the development approved under the Consent pursuant to cl 7.13 of the SLEP and the Program. This resulted in a reduction in the calculation of TFA from 3321.8m2 to 3084.4m2. This reduction arises because:

  1. The proposed retained portion of the ground floor area (being 156m2) can be credited against the contribution requirement imposed by the existing Condition 14 - Affordable Housing Contribution of development consent D/2022/1539; and

  2. The ground floor parking is considered ‘ancillary’ to the development and as such it should be excluded from the contribution calculation pursuant to cl 7.13(6)(c) of the SLEP.

  1. The amount of TFA for which a monetary contribution is payable towards the provision of affordable housing in accordance with the Program is therefore 3084.4m2. The rate that applies pursuant to the Program is $10,611.53 per square metre calculated on 1% of the TFA. The revised Affordable Housing Contribution amount payable under Condition 14 is therefore calculated to be $327,302.03.

  2. The parties agree that the proposed amendments to Condition 14 resolves all issues in dispute and the parties note that no Statement of Facts and Contentions has been filed by the Respondent in these proceedings.

  3. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I am satisfied that pursuant to s 7.32(3)(b) of the EPA Act, the condition is authorised by cl 7.13 of the SLEP in accordance with the Program and that the condition requires reasonable contribution having regard to the matters set out in s 7.32(3)(c) of the EPA Act.

  4. 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.

Notations:

  1. The Court notes:

  1. That pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (the EPA Regulation), the Applicant applied to the Respondent consent authority for an amendment to Development Application No D/2022/1359 (the Development Application), in the following respect:

  1. Consent was granted to the Development Application by the Respondent via its Local Planning Panel on 20 September 2023, Notice of Determination. The application is amended from an appeal against the deemed refusal of the Development Application to an appeal against Condition 14 of the Notice of Determination.

  1. That pursuant to s 38(1) of the EPA Regulation, the Respondent consent authority has approved the application to amend the Development Application.

Orders:

  1. The Court orders:

  1. The appeal is upheld.

  2. Development application D/2022/1359 for alterations and additions to a former warehouse building including demolition of existing floors, façade retention and construction of an additional three storeys, and use of the site as a commercial office premises at 19-21 Buckland Street, Chippendale, is determined by the grant of consent, subject to the conditions set out in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (444045, pdf)

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Decision last updated: 20 December 2023

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