CPG Darlinghurst Pty Ltd v The Council of the City of Sydney

[2024] NSWLEC 1252

Land and Environment Court

New South Wales

Medium Neutral Citation:

CPG Darlinghurst Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1252

Hearing dates:

Conciliation conference on 10 May 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1) The Applicant’s written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) prepared by Ethos Urban, seeking a variation of the development standard for building height set out in clause 4.3 of the SLEP is upheld.

(2) The appeal is upheld.

(3) Development Application D/2022/831 for the demolition of existing structures and construction of a seven-storey residential flat building comprising 14 apartments with three basement levels, rooftop communal open space, associated landscaping works and vehicle access from Darley Place at 349 Liverpool Street, Darlinghurst NSW 2010 is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

(4) The Applicant is to pay the Respondent the sum of $10,000.00 within 28 days from the date of these orders being made in full satisfaction of the following:

(a) The costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979; and

(b) In satisfaction of the costs payable pursuant to order 6 of the Amended Notice of Motion filed on 13 December, 2023 and made by the Court on 13 December, 2023.

Catchwords:

APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38

State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 7A, s 8

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.21C, 7.4, 7.14, 7.19

Category:

Principal judgment

Parties:

CPG Darlinghurst Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
A Singh (Solicitor) (Respondent)

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

File Number(s):

2023/364561

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of an 8-storey residential flat building comprising 14 apartments at 349 Liverpool Street, Darlinghurst. The development application was refused on 1 November 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 10 May 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 6 May 2024. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include the reduction in floor to floor heights, the lowering of the building so that the height of the parapet aligns with the adjacent heritage item, the reduction in the basement footprint and an increased southern side setback to increase deep soil landscaping, façade changes to achieve a solid to void ratio to achieve consistency with the adjacent heritage item, the introduction of a roof terrace to provide communal open space for the residents and internal layout changes.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Statement of Reasons and a Note on Jurisdiction. The Note on Jurisdiction sets out the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Residential flat buildings are permissible in the R1 General Residential zone in which the site is located, pursuant to the Sydney Local Environmental Plan 2012 (SLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 22m, pursuant to cl 4.3 of the SLEP. The proposed maximum height of 23.38m represents a contravention of 1.38m above the numerical standard. The contravention is confined to the lift and stair overrun, which provides access to the communal roof terrace. I am satisfied that the written request dated 5 April 2024, lodged pursuant to cl 4.6 of the SLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for access to the communal roof terrace, which is an appropriate location for communal open space in the context of the small size of the site and the inability to provide the requisite quantum of communal open space at ground level due to the provision of vehicular access. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development complies with the development standard for floor space ratio in cl 4.4 of the SLEP, as well as with the maximum number of car parking spaces for residential flat buildings in cl 7.4 of the SLEP.

• The site on which the development is proposed is located within the Oxford Street and Victoria Street Heritage Conservation Area. I am satisfied, based on the Heritage Impact Statement dated 5 August 2022 and the Heritage Letter prepared by Urbis dated 13 March 2024, that the proposed development will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the SLEP.

• Clause 5.21 of the SLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application was accompanied by a Site-specific Flood Assessment Report prepared by GRC Hydro dated 28 March 2023, and a supplementary version prepared by GRC Hydro dated 30 November 2023. Based on those documents, I have considered the matters in cl 5.21(3) of the SLEP and I am satisfied of the matters in cl 5.21(2).

• Consistent with the requirements of cl 6.21C of the SLEP and, based on the amended design of the proposed development, the Design Statement prepared by Woods Bagot dated 5 April 2024 (the Design Statement) and the letter from Ethos Urban dated 13 March 2024, I have considered the matters in cl 6.21C(2) and I am satisfied that the proposed development exhibits design excellence.

• The site is located on land identified as Class 5 acid sulfate soils, such that cl 7.14 of the SLEP applies. The Report on Geotechnical Investigation prepared by Douglas Partners dated August 2023 confirms that there is no known occurrence of acid sulfate soils, and therefore an acid sulfate soils management plan is not required for the works, consistent with cl 7.14(4) of the SLEP.

• Clause 7.19 of the SLEP concerns demolition and applies to the proposed development. I am satisfied that the requirements of cl 7.19(a)(ii) and (b) are met, as the site will be comprehensively redeveloped under the development consent once granted, and adequate measures will be taken to mitigate the visual impacts.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Investigation Report dated September 2023, the site can be made suitable for the development, subject to the carrying out of a number of recommendations, which have been incorporated in the conditions of consent.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 30 April 2024.

• The amended development application is accompanied by the Design Statement, which is a statement of a qualified designer that verifies the design of the development, as required by s 29 of the EPA Regulation 2021.

• Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development, pursuant to cl 8(2A) of Sch 7A. Based on the Design Statement, I have considered the matters required to be considered by s 147(1) of the SEPP Housing.

• The proposed development could affect an overhead electricity power line, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and does not object to the proposed development.

• The development application was notified between 2 September 2022 and 1 October 2022. I have considered the issues raised in the submissions received in response to the notification, which are summarised in the Statement of Facts and Contentions filed in the appeal proceedings.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. That pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (the EPA Regulation 2021), the Applicant applied to the Respondent consent authority for an amendment to Development Application No D/2022/831 (the Development Application) in accordance with the documents below:

Tab 1. Architectural plans
Drawing Number	Plan name	Date	Revision		Prepared By
DA-0000	Cover Sheet	April 2024	5		Woods Bagot
DA-1100	Site Location	April 2024	5		Woods Bagot
DA-1101	Site Analysis	April 2024	5		Woods Bagot
DA-1102	Existing Site Plan	April 2024	5		Woods Bagot
DA-1103	Proposed Site Plan	April 2024	5		Woods Bagot
DA-1104	Site Photos	April 2024	5		Woods Bagot
DA-1105	Existing Building Plan	April 2024	5		Woods Bagot
DA-2200	Demolition Plan	April 2024	5		Woods Bagot
DA-2201	Basement 3	April 2024	5		Woods Bagot
DA-2202	Basement 2	April 2024	5		Woods Bagot
DA-2203	Basement 1	April 2024	5		Woods Bagot
DA-2204	Ground Level	April 2024	5		Woods Bagot
DA-2205	Level 01	April 2024	5		Woods Bagot
DA-2206	Level 02	April 2024	5		Woods Bagot
DA-2207	Typical Upper – Level 03-06	April 2024	5		Woods Bagot
DA-2209.0	Roof Level	April 2024	5		Woods Bagot
DA-2209.1	Roof	April 2024	5		Woods Bagot
DA-2200	Area	April 2024	5		Woods Bagot
DA-2211	Storage	April 2024	5		Woods Bagot
DA-2212.1	Solar Access Study	April 2024	5		Woods Bagot
DA-2212	Solar Access & Cross Vent	April 2024	5		Woods Bagot
DA-2213	Deep Soil	April 2024	5		Woods Bagot
DA-2214	Total Floor Area	April 2024	5		Woods Bagot
DA-2601	Adaptables Level One	April 2024	5		Woods Bagot
DA-3300	Liverpool Street Existing Elevation	April 2024	5		Woods Bagot
DA-3301	Liverpool St Proposed Elevation	April 2024	5		Woods Bagot
DA-3302	Darley Place Proposed Elevation	April 2024	5		Woods Bagot
DA-3303	East Facing Proposed Elevation	April 2024	5		Woods Bagot
DA-3304	West Facing Proposed Elevation	April 2024	5		Woods Bagot
DA-3305	Long Section	April 2024	5		Woods Bagot
DA-3306.1	Short Section	April 2024	3		Woods Bagot
DA-3306	Short Section	April 2024	5		Woods Bagot
DA-3307	Height Plane Study	April 2024	5		Woods Bagot
DA-7702.0	Jun Sun Eye View Proposed	April 2024	5		Woods Bagot
DA-7702.1	Jun Syn Eye View Proposed	April 2024	5		Woods Bagot
DA-7702.2	Jun Sun Eye View Proposed	April 2024	5		Woods Bagot
DA-7702.3	Jun Sun Eye View Proposed	April 2024	5		Woods Bagot
DA-7702.4	Jun Sun Eye View Proposed	April 2024	5		Woods Bagot
DA-7702.5	Jun Sun Eye View Proposed	April 2024	5		Woods Bagot
DA-7702.6	Jun Sun Eye View Proposed	April 2024	5		Woods Bagot
DA-7703.0	Jun Sun Eye View Existing	April 2024	5		Woods Bagot
DA-7703.1	Jun Syn Eye View Existing	April 2024	5		Woods Bagot
DA-7703.2	Jun Sun Eye View Existing	April 2024	5		Woods Bagot
DA-7703.3	Jun Sun Eye View Existing	April 2024	5		Woods Bagot
DA-7703.4	Jun Sun Eye View Existing	April 2024	5		Woods Bagot
DA-7703.5	Jun Sun Eye View Existing	April 2024	5		Woods Bagot
DA-7703.6	Jun Sun Eye View Existing	April 2024	5		Woods Bagot
DA-7710.0	Jun Shadows Proposed	April 2024	5		Woods Bagot
DA-7710.1	Jun Shadows Proposed	April 2024	5		Woods Bagot
DA-7711.0	Jun Shadows Proposed	April 2024	5		Woods Bagot
DA-7711.1	Jun Shadows Proposed	April 2024	5		Woods Bagot
DA-8800	Computer Generated Image	April 2024	5		Woods Bagot
DA-8801	Materiality	April 2024	6		Woods Bagot
DA-8802	Computer Generated Image	April 2024	5		Woods Bagot
DA-8803	High Level Window Detail Elevation	April 2024	5		Woods Bagot
DA-8804	Adjacency Diagram	April 2024	5		Woods Bagot
DA-8805	Fire Hydrant & Sprinkler Booster Detail	April 2024	4		Woods Bagot
DA-8806	Surrounding View Points	April 2024	2		Woods Bagot
DA-8815	Rooftop Details	April 2024	2		Woods Bagot
DA-8816	Rooftop Details	April 2024	2		Turner Hughes Architect
DA-8817	Courtyard Sections	April 2024	2		Turner Hughes Architect
DA-8818	Extent of Material Detail	April 2024	2		Turner Hughes Architect
Tab 2. Landscape plans
Drawing Number	Plan name	Date	Revision		Prepared By
LP01-D10722	DA Cover Page	5 April 2024	I		Dangar Barin Smith
LP02-D10722	DA Ground Floor Landscape Plan	5 April 2024	l		Dangar Barin Smith
LP03-D10722	DA Landscape Plan	5 April 2024	l		Dangar Barin Smith
LP06-D10722	DA Canopy Coverpage Plan	5 April 2024	l		Dangar Barin Smith
LP07-D10722	DA Ground Floor Landscape Volumes Plan	5 April 2024	l		Dangar Barin Smith
LP08-D10722	DA Details	5 April 2024	l		Dangar Barin Smith
Tab 3. Civil plans
Drawing Number	Plan name	Date	Issue		Prepared By
C-000	Cover Sheet	7 March 2024	04		Intrax
C-0001	General Notes	7 March 2024	04		Intrax
C-0002	General Arrangement Plan and Legend	7 March 2024	04		Intrax
C-1001	Sediment and Erosion Control Plan	7 March 2024	04		Intrax
C-1011	Sediment and Erosion Control Notes and Details	7 March 2024	04		Intrax
C-3001	Roadworks and Civil Works Plan	7 March 2024	04		Intrax
C-3011	Vehicle Sweptpath Vertical Analysis	21 March 2023	01		Intrax
C-3101	Driveway Long Sections	21 March 2023	01		Intrax
C-3811	Road Standard Details & Typical Cross Sections	21 March 2023	01		Intrax
C-4001	Stormwater Management Plan	7 March 2024	04		Intrax
C-4101	Stormwater Catchment Plan	7 March 2024	04		Intrax
C-4201	Stormwater Long Section	20 March 2023	01		Intrax
C-4301	Stormwater Management Details Sheet 01 of 02	7 March 2024	04		Intrax
C-4302	Stormwater Management Details Sheet 02 of 02	7 March 2024	04		Intrax
C-4501	Water Quality Details & Music Model	7 March 2024	04		Intrax
Other documents
Description				Date
Tab 4. Letter from Ethos urban				13 March 2024
Tab 5. Clause 4.6 variation request – height of buildings prepared by Ethos Urban				5 April 2024
Tab 6. BASIX Certificate number 1323281M_04 prepared by Credwell Energy Pty Ltd				30 April 2024
Tab 7. NatHERS certificate prepared by Credwell Energy Pty Ltd				30 April 2024
Tab 8. Landscape management and maintenance schedule prepared by Dangar Barin Smith				April 2024
Tab 9. View Impact Assessment prepared by Ethos Urban				5 April 2024
Tab 10. Visual Impact Images prepared by Urbaine Design Group				11 March 2024
Tab 11. Design Statement prepared by Woods Bagot				5 April 2024
Tab 12. Construction Noise and Vibration Management Plan prepared by PWNA				7 March 2024
Tab 13. Preliminary Construction Traffic Management Plan prepared by Stantec				8 March 2024
Tab 14. Structural Engineers Report prepared by Mance Arraj				13 February 2024
Tab 15. SOFAC Response (Waste) prepared by MRA Consulting Group				8 February 2024
Tab 16. Report on Preliminary Site (Contamination) Investigation with Limited Sampling prepared by Douglas Partners				7 September 2023
Tab 17. Historical Archaeological Research Design & Excavation Methodology prepared by Urbis				1 March 2024
Tab 18. Historical Archaeological Impact Assessment prepared by Urbis				1 March 2024
Tab 19. Clarification in response to Statement of Facts and Contentions Contention 5(d) prepared by Woods Bagot				16 February 2024
Tab 20. Supporting Heritage letter prepared by Urbis				13 March 2024
Tab 21. Contention 10(d) – ‘Stop and Go’ traffic light system prepared by Stantec				8 March 2024
Tab 22. Acoustic Review of Amended Design prepared by PWNA				6 December 2023

2. That pursuant to s 38(1) of the EPA Regulation 2021, the Respondent consent authority has approved the application to amend the Development Application.

3. The Applicant has filed the amended plans and documents listed in the table at [8](1) with the Court on 3 May 2024.

9. The Court orders that:

1. The Applicant’s written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) prepared by Ethos Urban, seeking a variation of the development standard for building height set out in clause 4.3 of the SLEP is upheld.

2. The appeal is upheld.

3. Development Application D/2022/831 for the demolition of existing structures and construction of a seven-storey residential flat building comprising 14 apartments with three basement levels, rooftop communal open space, associated landscaping works and vehicle access from Darley Place at 349 Liverpool Street, Darlinghurst NSW 2010 is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

4. The Applicant is to pay the Respondent the sum of $10,000.00 within 28 days from the date of these orders being made in full satisfaction of the following:

1. The costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979; and

2. In satisfaction of the costs payable pursuant to order 6 of the Amended Notice of Motion filed on 13 December, 2023 and made by the Court on 13 December, 2023.

……………………….

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 16 May 2024