Cade v The Council of the City of Sydney

[2021] NSWLEC 1606

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cade v The Council of the City of Sydney [2021] NSWLEC 1606

Hearing dates:

Conciliation conference on 17 September 2021

Date of orders:

14 October 2021

Decision date:

14 October 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development No. DA/2020/127/A is modified in the terms in the conditions of consent at Annexure A and the architectural plans at Annexure B.

Catchwords:

MODIFICATION APPLICATION – alterations and additions – State heritage item – conditions of consent – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.46, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000 cl 121B

Heritage Act 1977 s 58

Land and Environment Court Act 1979 s 34

Sydney Local Environmental Plan 2012 cll 5.10, 6.21

Category:

Principal judgment

Parties:

Bret Cade (First Applicant)
Kathryn Cade (Second Applicant)
The Council of the City of Sydney (First Respondent)
Heritage Council of New South Wales (Second Respondent)

Representation:

Counsel:
Kathryn Cade (Self-represented) (Applicants)
A Simpson (Solicitor) (First Respondent)
E Ryan (Solicitor) (Second Respondent)

Solicitors:
The Council of the City of Sydney (First Respondent)
Department of Planning, Industry and Environment (Second Respondent)

File Number(s):

2021/165981

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against conditions of consent imposed on an approved modification of Development Consent No. DA/2020/127/A, for alterations and additions to an existing terrace house (the development consent), at 53 Lower Fort Street Dawes Point (the site), by the Council of the City of Sydney (the Council).

2. The development consent for alterations and additions to the existing terrace house was granted on 30 June 2020. The development consent included conditions that deleted openings and a skylight proposed as part of the application. The applicants lodged a modification application on 30 November 2020 and the development consent was modified on 12 February 2021. The modified development consent, by condition, excluded changes to the existing window in Room 1.6 (condition 14(h)) and a skylight (condition 14(e)).

3. The proposal is to change the existing window in Room 1.6 to a door, and to insert a skylight into an existing roof over the lift shaft, by deleting conditions 14(h) and (e) of the development consent.

4. The proposal is integrated development, within the meaning of s 4.46 of the EPA Act, as the development requires approval under s 58 of the Heritage Act1977.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 September 2021. I presided over the conciliation conference. 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.

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. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

7. There are preconditions to the exercise of power to grant development consent for the proposal.

8. I accept the Council’s submission that the proposal to convert an existing window into a door and to insert a skylight into an existing roof is substantially the same development as that originally approved, pursuant to s 4.55(2)(a) of the EPA Act.

9. The site is zoned R1 General Residential under Sydney Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R1 zone are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing land use pattern of predominantly residential uses.

10. Sub-clause 5.10(4) of LEP 2012 requires the consent authority to consider the effect of the proposed development on the heritage significance of the item, before granting consent under cl 5.10. I accept the agreed submission of the respondents that the proposal does not detrimentally impact on the heritage significance of the item, because the proposal is minor and maintains the original and early fabric, and the heritage significance, of the item.

11. I accept the Council’s submission that the proposal is consistent with the objective of the design excellence clause to deliver the highest standard of architectural design, and that the regard has been had to the matters listed under sub-cl 6.21(4) of LEP 2012.

Orders

12. The Court notes:

1. That the Council of the City of Sydney as the relevant consent authority and the Heritage Council, as relevant approval body, have agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application to modify Development Consent No. DA/2020/127/A, by:

1. Converting the existing window in the laundry to a door; and

2. Installing a skylight in the roof above the lift shaft.

2. That the applicant lodged the amended application on the NSW planning portal on 17 September 2021.

3. That the amended application was filed with the Court on 27 September 2021.

13. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. DA/2020/217/A is modified in the terms of the conditions of consent at Annexure A and the architectural plans at Annexure B.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (384749, pdf)

Annexure B Plans (31101229, pdf)

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Amendments

15 October 2021 - Annexures A and B amended.

Decision last updated: 15 October 2021