Dexus Property Services Pty Limited v The Council of the City of Sydney

[2023] NSWLEC 1321

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dexus Property Services Pty Limited v The Council of the City of Sydney [2023] NSWLEC 1321

Hearing dates:

Conciliation conference on 11 and 30 May 2023

Date of orders:

22 June 2023

Decision date:

22 June 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (NSW) the function of the consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, agrees to the Applicant amending development application D/2022/602 filed with the Court on 12 December 2022 by including and substituting (as the circumstances require) the amended plans and documents referred to in Annexure A.

(2)   The appeal is upheld.

(3)   Development consent is granted to development application D/2022/602 for the installation of external retractable awnings on level 7 (plaza level) at 25 Martin Place, Sydney, subject to the conditions of consent at “Annexure A”.

Catchwords:

DEVELOPMENT APPLICATION – effect of proposed development on heritage significance – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 5.10, 6.21C, Sch 5

Environmental Planning and Assessment Regulation 2021, s 38

Category:

Principal judgment

Parties:

DEXUS PROPERTY SERVICES PTY LIMITED (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
P Canning (Solicitor) (Respondent)

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

File Number(s):

2022/374580

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the council of the City of Sydney (the Respondent) of development application D/2022/602 seeking consent for the installation of external retractable awnings on Level 7 (plaza level) at 25 Martin Place, Sydney.

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 11 May 2023, at which I presided.

3. The proceedings commenced with an onsite view, after which the parties and experts continued the conciliation conference, at which time the parties reached agreement as to the terms of a decision that would be acceptable to the parties. This agreement involved the Court upholding the appeal and granting development consent to the development application subject to the preparation of amended plans, and agreed conditions.

4. I granted an adjournment in order for the Applicant to prepare amended plans, and other documents, and for the parties to discuss conditions of consent. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 7 June 2023.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. However, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. The parties identified the jurisdictional prerequisites in these proceedings and explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [13].

7. The site is located within the SP5 Metropolitan Centre zone, according to the Sydney Local Environmental Plan 2012 (SLEP), in which development for the purposes of commercial premises is permitted with consent, where consistent with the following objectives of the SP5 zone:

•  To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia’s participation in the global economy.

•  To provide opportunities for an intensity of land uses commensurate with Sydney’s global status.

•  To permit a diversity of compatible land uses that are characteristic of Sydney’s global status and that serve the workforce, visitors and wider community.

•  To encourage the use of alternatives to private motor vehicles, including public transport, walking and cycling.

•  To promote land uses with active street frontages within podiums that contribute to the character of the street.

•  To promote the efficient and orderly development of land in a compact urban centre.

•  To promote a diversity of commercial opportunities varying in size, type and function, including new cultural, social and community facilities.

•  To recognise the important role that central Sydney’s public spaces, streets and amenity play in a global city.

•  To promote the primary role of the zone as a centre for employment and permit residential accommodation and serviced apartments where the accommodation complements employment-generating land uses.

8. The site is identified as an item of heritage significance in Sch 5 of the SLEP, known as the MLC Centre complex. Accordingly, the provisions of cl 5.10 of the SLEP apply. The parties agree that the amended plans prepared following the conciliation conference appropriately conserve the heritage significance of the heritage item, when read in conjunction with the agreed conditions of consent.

9. Likewise, the parties agree that the amendments contained in the amended architectural plans, and agreed conditions of consent satisfy the terms of cl 6.21C in respect of design excellence. In particular, the parties have formed an opinion that the development exhibits design excellence when regard is had to the standard of architectural design, materials and detailing which is agreed to be appropriate to the building type and location (cl 6.21C(2)(a)).

Conclusion

10. 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.

11. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

12. The Court notes the Applicant has filed a copy of the amended documents cited at [4] with the Court on 7 June 2023.

Orders

13. The Court orders that:

1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (NSW) the function of the consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, agrees to the Applicant amending development application D/2022/602 filed with the Court on 12 December 2022 by including and substituting (as the circumstances require) the amended plans and documents referred to in Annexure A.

2. The appeal is upheld.

3. Development consent is granted to development application D/2022/602 for the installation of external retractable awnings on level 7 (plaza level) at 25 Martin Place, Sydney, subject to the conditions of consent at “Annexure A”.

T Horton

Commissioner of the Court

**********

Annexure A

Amendments

21 July 2023 - Correction is made to a typographical error on the coversheet.

Decision last updated: 01 September 2023