Chami v The Council of the City of Sydney

[2025] NSWLEC 1395

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chami v The Council of the City of Sydney [2025] NSWLEC 1395

Hearing dates:

Conciliation conference on 24 March, 10 April 2025

Date of orders:

03 June 2025

Decision date:

03 June 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2024/842, as amended, for alterations and additions to the existing residential dwelling including new basement, new rear addition and new rear garage and attic space above same building at 4 Alexander Street, Paddington is determined by the grant of consent subject to the conditions at Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the first applicant is to pay the respondent’s costs thrown away as a result of amending the development application, as assessed or as agreed by the parties.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions -- conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.21C, 7.14, 7.19

Category:

Principal judgment

Parties:

Moses Chami (First Applicant)
Tone Wheeler (Second Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
A Simpson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/439227

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by the City of Sydney Council, of Development Application DA2024/842 which seeks consent for the demolition of an existing dwelling and construction of a three-storey dwelling with basement, new rear garage with studio above, associated landscaping and tree removal at Lot 1 DP 1307323, 4 Alexander Street, Paddington (the site).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 was held on 24 March and 10 April 2025. I presided over the conciliation conference.

4. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicants amending the development application to adequately respond to the Council's contentions. The amended application involves the partial retention of the existing dwelling, with alterations and additions to the rear.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified in a jurisdictional note. From this, I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 3 October to 1 November 2024, during which time nineteen submissions were received. The amended application was renotified form 2 May to 17 May 2025, during which time a further eight submissions were made. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that the site has a historically been used for residential purposes and there is no known contamination on the site nor any history of contaminating activities and subsequently, the site is suitable for the intended use.

10. Pursuant to Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, tree removal is requested under this development application. The Council submits, and I accept that this tree removal is acceptable.

11. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to the requirements of the State Environmental Planning Policy (Sustainable Buildings) 2022 and EPA Regulation s 27. Compliance with the commitments within this certificate is further required through a condition of consent.

12. The subject site is zoned R1 General Residential under the Sydney Local Environmental Plan 2012 (SLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

13. Pursuant to SLEP cl 4.3, a maximum building height of 9 metres applies to the subject site, and the proposed development complies with this development standard.

14. SLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1:1. The proposed development again complies with this development standard with a maximum FSR of 0.944:1.

15. The site is not identified as a heritage item, but is located within the Paddington South Heritage Conservation Area (HCA). The existing dwelling is noted as a contributory building in the HCA. Pursuant to SLEP cl 5.10, I accept that, due to the partial retention of the existing dwelling, the proposed development as amended will now have an acceptable impact on the heritage significance of the HCA.

16. SLEP cl 6.21C Design Excellence applies to the application. Under this clause, the consent authority must be satisfied that the proposed development exhibits design excellence through consideration of the matters listed at cl 6.21C(2). From the parties’ submission and the amended application, I accept that, when considered against cl 6.21C(2) the proposed development exhibits design excellence.

17. Pursuant to SLEP cl 7.14, the site is identified as Class 5 on the Acid Sulfate Soils Map, however the parties submit, and I accept that the subject works are not likely to lower the water table below 1m Australian Height Datum on any land within 500m. The requirements of this clause are therefore met.

18. SLEP cl 7.19 provides that demolition must not result in long term adverse visual impact. From the parties’ submission and the amended application, I accept that the land will be comprehensively redeveloped under the development consent, and that adequate measures will be taken to assist in mitigating any adverse visual impacts that may arise from the demolition with regard to streetscape and the HCA.

Conclusion

19. For these reasons, 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.

20. As the parties’ decision is one 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.

21. The Court notes:

1. The Council of the City of Sydney, as the relevant consent authority, has approved, under section 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of DA2024/842 to incorporate the documents listed below:

Drawing Number	Drawing Name	Date
Architectural drawings prepared by Environa Studio
Dwg. No. 030, Rev. D	Site plan	30.04.2025
Dwg. No. 101, Rev. F	Basement plan	30.04.2025
Dwg. No. 102, Rev. H	L1 plan	30.04.2025
Dwg. No. 103, Rev. F	L2 plan	30.04.2025
Dwg. No. 110, Rev. F	Roof plan	30.04.2025
Dwg. No. 120, Rev. F	Section A	30.04.2025
Dwg. No. 121, Rev. F	Section B	30.04.2025
Dwg. No. 131, Rev. F	West elevations	30.04.2025
Dwg. No. 132, Rev. F	East elevations	30.04.2025
Dwg. No. 133, Rev. F	North elevation	30.04.2025
Dwg. No. 134, Rev. F	South elevation	30.04.2025
Dwg. No. 202, Rev. B	Screen details	30.04.2025
Dwg. No. 203, Rev. B	Fence details	30.04.2025
Dwg. No. 210, Rev. D	Material + finishes schedule	30.04.2025
Dwg. No. 510, Rev. D	External works plan	30.04.2025
Dwg. No. 901, Rev. F	3D perspectives	30.04.2025
Dwg. No. 902, Rev. F	3D perspectives	30.04.2025
Dwg. No. 940, Rev. D	Existing / demolition plan	30.04.2025
Landscape drawings prepared by Zenith Landscape Design
Dwg. Nos. 25-5182 LO1, 25-5182 LO2, and 25-5182 LO3, Rev. A	Landscape plans	17.04.2025

Other documents:

BASIX Certificate No. #1765980S_04 prepared by Frys Building Consultancy Pty Ltd dated 22 May 2025

(the ‘Amended Development Application’)

2. The Amended Development Application was filed with the Court on 26 May 2025.

22. The Court orders:

1. The appeal is upheld.

2. Development Application DA2024/842, as amended, for alterations and additions to the existing residential dwelling including new basement, new rear addition and new rear garage and attic space above same building at 4 Alexander Street, Paddington is determined by the grant of consent subject to the conditions at Annexure A.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the first applicant is to pay the respondent’s costs thrown away as a result of amending the development application, as assessed or as agreed by the parties.

E Washington

Commissioner of the Court

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Annexure A (389 KB, pdf)

Decision last updated: 03 June 2025