Boyce v Sydney City Council

[2020] NSWLEC 1216

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Boyce v Sydney City Council [2020] NSWLEC 1216
Hearing dates:	Conciliation conference on 4 March and 8 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court Orders: (1) The Applicant is granted leave to amend Development Application D/2019/1139 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “A” hereto. (2) The clause 4.6 written variation request prepared by dfp Planning Consultants and dated 4 February 2020 is upheld and the maximum height of 22.91m to the lift overrun is found to be satisfactory. (3) The appeal is upheld. (4) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $3,500 payable within 28 days. (5) Development Consent is granted to Development Application D/2019/1139 for the demolition of the existing commercial building and the construction of a new part 5/part 7 storey boarding house with 52 rooms including a caretaker’s room at 130 Parramatta Road, Camperdown, NSW 2050 subject to the conditions of consent annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Greg Boyce (Applicant) Sydney City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) A Simpson (Solicitor) (Respondent)   Solicitors: Sydney City Council (Respondent)
File Number(s):	2019/371718
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant has appealed against the Council’s deemed refusal of DA/2019/1139 which seeks consent for the demolition of an existing commercial building and the construction of a new part 5/part 7 storey boarding house with 52 rooms including a caretaker’s room at 130 Parramatta Road, Camperdown (the site).

2. The appeal is made to the Court pursuit to s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) and the essential facts and statutory framework are recorded in the Council’s Statement of Facts and Contentions dated 3 January 2020 (SOFC).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 4 March and 8 May 2020. I have presided over the conciliation conferences.

4. 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 exercising the function under s 4.16 of the EPA Act by upholding the appeal and granting development consent to the development application subject to conditions in Annexure A.

5. 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. The parties’ decision involves jurisdictional prerequisites that must be satisfied prior to the grant of consent. The parties identified the jurisdictional prerequisites of relevance in these proceedings to include a variation of the height of building standard in cl 4.3 of the Sydney Local Environmental Plan 2012 (LEP) pursuant to cl 4.6.

6. To that end the applicant relies on the written request prepared by dfp Planning Consultants dated 4 February 2020.

7. Following a consideration of the applicant’s written request against the provisions of the height clause I am satisfied that the request adequately addresses the matters required to be demonstrated by cl 4.6(4) (a) (i) and (ii) for the following reasons.

Clause 4.6(4) (a) (i)

8. In that regard, I accept as the request explains that it is unreasonable and unnecessary to comply with the height standard in this case because the objectives in cl 4.3(1) (a) and (b) are achieved by the proposed development notwithstanding the breach.

9. In forming this view I understand that the site has a height control of 22m and that the proposal has a maximum height of 22.9m which is 900mm more that the height standard.

10. In this case the height difference is primarily due to the slope of the site and the inclusion of the lift overrun on the eastern side of the proposed roof. And, while the lift overrun is 0.91m high above the roof, its location some 7.1m from the front boundary ensures it will not be seen from the street frontage. The east and west corners of the front roof also breach the height limit by 160mm on the eastern site and 610mm on the western side and this breach is driven by the slope from east to west. In all other respects, it is fair to say that the majority of the building’s roof is consistent with the height standard and is “appropriate to the condition of the site and its context” in accord with objective (a) to cl 4.3.

11. I am also of the opinion that the development’s recessed setback to Parramatta Road and its stepping down to Purkis Lane result in a satisfactory transition between the developments to the east (which have a lower maximum height) and the adjoining site to the west which contains a building of 7 storeys.

12. Accepting that the proposed height is consistent with other nearby buildings and provides an appropriate transition of building height particularity to the east and that the adjoining developments have ground level retail and commercial with 6 storeys of residential I am satisfied that there are sufficient identified environmental planning grounds to justify the breach of the height standard.

Clause 4.6 (4) (a) (ii)

13. Accepting that the development is consistent with the objectives of the height standard (for the reasons outlined above), and the development integrates a mixture of compatible land uses - including retail and residential, in accordance with the objectives of the B4 Mixed Use Zone I am of the opinion that the development will be in the public interest.

Clause 4.6 (5)

14. The application does not raise any matter of significance for state and regional planning and while I accept there is public benefit in maintaining a development standard in this case, I am satisfied on the basis of the written request and my understating of the topography of the site and the amended application that the variation of the development standard in cl 4.3 of the LEP is appropriate under cl 4.6 in this instance.

15. 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.

16. The Court orders:

1. The Applicant is granted leave to amend Development Application D/2019/1139 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “A” hereto.

2. The clause 4.6 written variation request prepared by dfp Planning Consultants and dated 4 February 2020 is upheld and the maximum height of 22.91m to the lift overrun is found to be satisfactory.

3. The appeal is upheld.

4. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $3,500 payable within 28 days.

5. Development Consent is granted to Development Application D/2019/1139 for the demolition of the existing commercial building and the construction of a new part 5/part 7 storey boarding house with 52 rooms including a caretaker’s room at 130 Parramatta Road, Camperdown, NSW 2050 subject to the conditions of consent annexed hereto and marked “A”.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (171 KB)

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Amendments

15 May 2020 - Representation details amended from "G Boyce (Litigant in Person) (Applicant)" to "M Staunton (Applicant)".

Decision last updated: 15 May 2020