Chan v Council of the City of Sydney

[2020] NSWLEC 1294

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chan v Council of the City of Sydney [2020] NSWLEC 1294

Hearing dates:

Conciliation conference on 2 July 2020

Date of orders:

13 July 2020

Decision date:

13 July 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the amended plans set out in Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away in the amount of $5,500.00 within 28 days of the making of these orders.

(3) The appeal is upheld.

(4) Development consent is granted to development application No. D/2018/1455 for the demolition of the existing building and construction of a new 8 storey hotel containing 36 guest rooms on the property known as 129-131 Bayswater Road, Rushcutters Bay and being all that land comprised in Lot 129 DP 1111169 including demolition works on 1 Bayswater Lane, Darlinghurst being all that land comprised in Lot 100 of DP 714963 subject to the conditions of consent in Annexure ‘B’.

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:

Sharon Chan (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
M Flick (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2019/370871

Publication restriction:

No

Judgment

1. COMMISSIONER: Sharon Chan (the Applicant) has appealed the refusal by the Council of the City of Sydney (the Respondent) of her development application D/2018/1455 for demolition of existing structures and construction of an eight-storey hotel (the Proposed Development) at 129 to 131 Bayswater Road, Rushcutters Bay (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 2 July 2020, and I had presided over that 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 consent to the Applicant’s 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.

7. 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:

1. the Development Application was made with owner’s consent, including the consent of RailCorp (which became the Transport Asset Holding Entity of New South Wales (TAHE) on 1 July 2020), which is required in respect of certain elements of the demolition works proposed by the Applicant;

2. the Proposed Development, characterised as an eight-storey hotel with 36 rooms, is permissible with consent on the Subject Site, which is zoned B4 Mixed Use under the provisions of cl 2.3 of Sydney Local Environmental Plan 2012 (SLEP);

3. the Proposed Development complies with the height of buildings development standard applicable to the Subject Site under the provisions of cl 4.3 of SLEP;

4. the Proposed Development complies with the Floor Space Ratio (FSR) development standard applicable to the Subject Site under the provisions of cl 4.4 of SLEP; 

5. the Proposed Development is compliant with the provisions of cl 6.21 of SLEP in relation to design excellence, and the Respondent has confirmed that it has considered the matters identified within cl 6.21(4) of SLEP, and the proposed development exhibits design excellence.

8. The Parties have explained, and I accept, that the above jurisdictional prerequisites have been satisfied.

9. The Respondent also advised that it was satisfied that the matters raised by objectors in response to its notification of the Applicants’ Proposed Development, had been satisfactorily resolved by the Applicants’ amended plans.

10. Having considered the advice of the Parties, provided above at [7] and [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. I am further 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.

12. 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.

13. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans set out in Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away in the amount of $5,500.00 within 28 days of the making of these orders.

3. The appeal is upheld.

4. Development consent is granted to development application No. D/2018/1455 for the demolition of the existing building and construction of a new 8 storey hotel containing 36 guest rooms on the property known as 129-131 Bayswater Road, Rushcutters Bay and being all that land comprised in Lot 129 DP 1111169 including demolition works on 1 Bayswater Lane, Darlinghurst being all that land comprised in Lot 100 of DP 714963 subject to the conditions of consent in Annexure ‘B’.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (8024614, pdf)

Annexure B (384273, pdf)

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Decision last updated: 13 July 2020