Cornwallis Pty Ltd v City of Sydney Council

[2020] NSWLEC 1239

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cornwallis Pty Ltd v City of Sydney Council [2020] NSWLEC 1239
Hearing dates:	Conciliation conferences on 1 April, 22 April and 8 May 2020
Date of orders:	03 June 2020
Decision date:	03 June 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	Refer to orders at [9] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Cornwallis Pty Ltd (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: M Sonter (Solicitor) (Applicant) M Flick (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) City of Sydney Council (Respondent)
File Number(s):	2019/258076
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against City of Sydney Council's deemed refusal of Development Application D/2018/1058 (‘DA’).

2. The DA, with modifications incorporated into amending plans, seeks consent for the demolition of an existing building, excavation and construction of a 6-storey boarding house comprising 62 boarding rooms, 2 basement levels containing 26 car parking spaces, a rooftop communal terrace, and tree removal, at 15-29 Cornwallis Street Redfern, legally identified as Lots 4 and 5 in DP 18034.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 1 April, 22 April and 8 May 2020, and at which I presided. After more time was given, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

6. 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 certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (note titled: “Jurisdictional Matters about which the Court must be satisfied” and provided to the Court by email dated 22 May 2020). Regarding jurisdiction, and noting this advice, I am satisfied of the following:

1. The proposal is permissible under Sydney Local Environmental Plan 2012 (‘LEP’), with boarding houses permissible in the B4 Mixed Use zone that applies to the site.

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’) applies to the site under cl 26 of the SEPP.

3. The maximum floor space ratio (‘FSR’) permitted under the LEP is 2.0:1. The boarding house development is eligible for a bonus FSR of 0.5:1 in accordance with cl 29(1) of the SEPP. A total maximum FSR of 2.5:1 (836sqm) is permitted. I accept the advice of the parties that the proposal results in a FSR of 2.455:1 (831.1sqm), and thus complies in regard to FSR.

4. I accept the advice of the parties that the development standards contained at cl 30 of the SEPP have been complied with. The advice relevantly includes the following matters:

1. A communal living room is provided;

2. No boarding room has a GFA of more than 25sqm;

3. No boarding room will be occupied by more than 2 lodgers;

4. Bathroom and kitchen facilities are provided within each boarding room;

5. A boarding room is provided for an on site manager; and

6. At least one bicycle and one motorbike parking space is provided for each of the 5 rooms in the development amounting to a total of 14 motorbikes and 27 bicycle spaces.

5. The maximum building height is 18m under cl 4.3 of the LEP. I accept the advice of the parties that the proposal has a maximum building height of 17.65m which complies.

6. Clause 6.21 of the LEP applies to the proposal. It provides that consent must not be granted to such development unless, in the opinion of the consent authority, the proposed development exhibits design excellence. The parties have provided a detailed explanation of the changes to the proposal which have been incorporated in the amending plans (note titled: “Summary of resolution of contentions” (‘SRC’) provided to the Court by email dated 22 May 2020). I have had regard to the matters at cl 6.21(4) of the LEP, and the advice of the parties in the SRC in regard to the changes to the proposal (including in regard to provisions for amenity of residents, building bulk and scale, siting, amenity impacts and landscaping). I am satisfied that the building exhibits design excellence.

7. Having regard to notification and requirements for a consent authority to take into consideration any submissions made, I am advised that the application was notified in accordance with the requirements (Council’s Statement of facts and contentions, filed 12 September 2019). I am aware of the issues raised in submissions, as advised by the parties, and I am satisfied that they have been considered.

8. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, I am advised that appropriate studies have been undertaken and am satisfied that consideration has been given as to whether the subject site is contaminated.

7. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

9. The Court orders:

1. The Applicant is granted leave to rely on the following amended documents:

1. Amended architectural plans prepared by Hosking Munro Pty Ltd listed in the below table:

Drawing Number	Drawing Name	Date
DA100 Rev EE	Cover + BCA Section J Compliance report + acoustic report	24.04.20
DA101 Rev GG	Site analysis plan and Basix notes	15.05.20
DA 102 Rev EE	Basement 2 Floor Plan	24.04.20
DA 103 Rev EE	Basement 1 Floor Plan	24.04.20
DA 104 Rev GG	Ground Floor + Lower Ground Floor Plan	24.04.20
DA 105 Rev GG	First Floor Plan	24.04.20
DA 106 Rev GG	Second Floor Plan	24.04.20
DA 107 Rev GG	Third Floor Plan	24.04.20
DA 108 Rev GG	Fourth Floor Plan	24.04.20
DA 109 Rev GG	Fifth Floor Plan	24.04.20
DA 110 Rev FF	Roof Plan	24.04.20
DA 111 Rev EE	GFA Calculations 1	24.04.20
DA 112 Rev EE	GFA Calculations 2	24.04.20
DA 113 Rev EE	GFA Calculations 3	24.04.20
DA 114 Rev EE	Grid Plan Ground Floor Plan; Lower GR Floor Plan	24.04.20
DA 115 Rev FF	Grid First Floor Plan	24.04.20
DA 200 Rev FF	West Elevation	24.04.20
DA 201 Rev FF	North Elevation	24.04.20
DA 202 Rev GG	East Elevation	24.04.20
DA 203 Rev FF	South Elevation	24.04.20
DA 204 Rev EE	Building Envelope	24.04.20
DA 205 Rev FF	Finishes Schedule West Elevation	24.04.20
DA 206 Rev FF	Finishes Schedule South Elevation	24.04.20
DA 207 Rev FF	Finishes Schedule North Elevation	24.04.20
DA 208 Rev GG	Finishes Schedule East Elevation	24.04.20
DA 300 Rev FF	Section A-A Section C-C	24.04.20
DA 301 Rev FF	Section B-B	24.04.20
DA 302 Rev FF	Section D-D	24.04.20
DA303 Rev FF	Detailed Section AA	24.04.20
DA304 Rev FF	Detailed Landscape Sections 1+2	24.04.20
DA305 Rev FF	Detailed Landscape Sections 3+4+5	24.04.20
DA306 Rev FF	Detailed Landscape Sections 6+7+8	24.04.20
DA 701 Rev EE	Driveway Section	24.04.20
DA 702 Rev EE	Driveway Plans Vehicles Entering	24.04.20
DA703 Rev BB	Driveway Plans Vehicles Exiting	24.04.20
DA 801 Rev EE	Typical Room Layouts 1	24.04.20
DA 802 Rev EE	Accessible Room Layout	24.04.20
DA 914 Rev CC	Sun Eye View Diagrams; Shadow Diagram 21st June – 10am	24.04.20
DA 915 Rev DD	Sun Eye View Diagrams; 21st June – 11am	24.04.20
DA 916 Rev DD	Sun Eye View Diagrams; 21st June – 12 noon	24.04.20
DA 917 Rev DD	Sun Eye View Diagrams; 21st June – 1pm	24.04.20
DA 918 Rev DD	Sun Eye View Diagrams; 21st June – 2pm	24.04.20
DA 919 Rev DD	Sun Eye View Diagrams; 21st June – 3pm	24.04.20
DA 920	Sun Eye View Diagrams; 21st June – 1pm; 21st June – 2pm; 21st June – 3pm	Undated

2. Amended landscape plans prepared by Hosking Munro Pty Ltd listed in the below table:

Drawing Number	Drawing Name	Date
DAL101 Rev FF	Ground + Lower Ground Floor Landscape Concept Plan	24.04.20
DAL 102 Rev FF	Ground + Lower Ground Floor Planting Schedule	24.04.20
DAL 103 Rev FF	First Floor Landscape Concept Plan	24.04.20
DAL 104 Rev FF	First Floor Planting Schedule	24.04.20
DAL 105 Rev FF	Fifth Floor Landscape Concept Plan	24.04.20
DAL 106 Rev FF	Fifth Floor Planting Schedule	24.04.20
DAL 107 Rev FF	Plant List + Palette	24.04.20
DAL 108 Rev EE	Landscape Details	24.04.20
DAL 109 Rev EE	Deep Soil Analysis Ground Floor + First Floor	24.04.20
DAL 110 Rev FF	Canopy calculations	24.04.20
DAL 304 Rev FF	Detailed Landscape Sections 1+2	24.04.20
DAL 305 Rev FF	Detailed Landscape Sections 3+4+5	24.04.20
DAL 306 Rev FF	Detailed Landscape Sections 6+7+8	24.04.20

3. Amended Acoustic Report prepared by Atkins Acoustics and Associates Pty Ltd dated 10 December 2019;

4. Amended Access Report prepared by AED Group dated 6 December 2019;

5. Construction Waste and Recycling Management Plan prepared by Hosking Munro Pty Ltd dated 20 February 2020;

6. Landscape Design Statement prepared by Hosking Munro Pty Ltd dated December 2019;

7. Landscape Specification prepared by Hosking Munro Pty Ltd dated February 2020;

8. Amended Plan of Management prepared by Hosking Munro Pty Ltd dated March 2020;

9. Amended Detailed Site Investigation report prepared by Benviron Group dated March 2020;

10. Letter of Interim Advice prepared by Harwood Environmental Consultants dated 31 March 2020;

11. amended BASIX certificate prepared by Gradwell Consulting dated 14 May 2020.

2. The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $10,000.00 within 28 days of the date of this agreement.

3. The appeal is upheld.

4. Development Application no. D/2018/1058 for demolition of an existing building, excavation and construction of a 6 storey boarding house comprising 62 boarding rooms, 2 basement levels containing 26 car parking spaces and a rooftop communal terrace and tree removal at 15-29 Cornwallis Street, Redfern is approved subject to the conditions contained at Annexure “A” and the plans annexed hereto and marked Annexure “B”.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (374681, pdf)

Annexure B (5075923, pdf)

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Decision last updated: 03 June 2020