Dymocks Book Arcade Pty Ltd v The Council of the City of Sydney

[2024] NSWLEC 1753

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dymocks Book Arcade Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1753

Hearing dates:

Conciliation Conference 15 November 2024

Date of orders:

22 November 2024

Decision date:

22 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. D/2024/13, as amended, for alterations and additions to the existing building on land identified as Lots 101, 102 and 103 in Deposited Plan 456820 and Lot 2 in Deposited Plan 181756 and known as 424-430 George Street, Sydney NSW 2000, is determined by the grant of development consent subject to the conditions included at Annexure A.

Catchwords:

APPEAL – Development application - alterations and additions - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 3.1, 3.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.98

Sydney Local Environmental Plan 2012, cll 5.10, 6.21C

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Dymocks Book Arcade Pty Ltd (Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/134997

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (D/2024/13) (Development Application) for alterations and additions to the existing heritage building on land identified as Lots 101, 102 and 103 in Deposited Plan 456820 and Lot 2 in Deposited Plan 181756 and known as 424-430 George Street, Sydney NSW 2000 (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application as lodged with the respondent on 9 January 2024 sought consent for alterations and additions to the existing “Dymocks Building” on the Subject Land including:

1. removal and replacement of existing steel-framed windows with aluminium windows on the eastern (rear) elevation and the northern and southern side elevations;

2. removal and replacement of external window mounted air conditioning units with new air conditioning units, on eastern (rear) elevation and the northern and southern side elevations;

3. installation of pipe covers to horizontal pipe branches for screening; and

4. minor repairs and painting works to masonry wall areas, window reveals and sills.

4. The Development Application was publicly notified between 15 January and 6 February 2024. No objections were received in response to the notification.

5. On 11 April 2024, the proceedings were commenced against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 26 September 2024, amended plans were filed with the Court on 5 November 2024 (Amended Development Application) cited at [32]. The amendments can be summarised as:

1. providing additional information/justification for the proposed aluminium replacement windows; and

2. including updated plans reflecting aesthetic changes to the proposed replacement windows.

7. Following these amendments, the parties reached agreement as to the resolution of the matter. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

8. The parties requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 15 November 2024. I presided over the conciliation conference.

9. 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.

Jurisdictional considerations

10. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow.

Owner’s consent

11. The Development Application was submitted by the applicant, being the registered proprietor of the Subject Land.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Site is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because the works are proposed to an existing building with a longstanding commercial use and no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. Section 2.98 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) applies to the Amended Development Application as the Subject Land is adjacent to a rail corridor.

14. The Development Application was referred to Transport for NSW who provided a response and proposed conditions. These conditions have been incorporated at Conditions 31 to 44 of the Agreed Conditions.

15. In determining the Amended Development Application, I am satisfied that the relevant rail authority’s response to the notification under s 2.98(2)(a) has been considered.

State Environmental Planning Policy (Sustainable Buildings) 2022

16. As the Amended Development Application involves alterations to an existing building with an estimated cost of $10 million or more, s 3.1(1)(b) of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to the Amended Development Application.

17. Pursuant to s 3.2 of the Sustainable Buildings SEPP, the consent authority must consider the matters in s 3.2(1). The parties submit, and I accept, that that the relevant matters have been considered and that the Amended Development Application achieves the aims of the s 3.2(1).

Sydney Local Environmental Plan 2012

18. The Site is zoned SP5 Metropolitan Centre under the Sydney Local Environmental Plan 2012 (SLEP). Accordingly, development for alterations and additions to commercial premises is permitted with consent in the SP5 zone. I have had regard to the zone objectives which are extracted below:

•  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.

19. The parties agree that there are no development standards applicable to the Amended Development Application as it does not alter the existing height or floor space ratio of the building.

20. Clause 5.10 of the SLEP relating to heritage conservation applies to the Amended Development Application as the Subject Land is listed as a heritage item under the SLEP. Pursuant to cl 5.10(4) of the SLEP, the consent authority must consider the effect of the proposed development on the heritage significance of the item before granting consent.

21. In determining the Amended Development Application, I confirm that I have considered the effect of the proposed development on the heritage significance of the heritage item and am satisfied that there is no impediment to the granting of consent having regard to the amended plans, expert report of Mr Garry Palmer dated September 2024 and Statement of Heritage Impact prepared by Weir Phillips dated November 2023.

22. Clause 6.21C of the SLEP regarding design excellence applies to the Amended Development Application as the proposal involves external alterations to an existing building. Pursuant to cl 6.21C of the SLEP, development consent must not be granted unless the consent authority is satisfied that the proposed development exhibits design excellence.

23. The parties agree that the Amended Development Application exhibits design excellence on the basis that the proposed replacement of the windows will visually appear as a like for like replacement, thus maintaining the heritage integrity of the existing building whilst providing superior amenity impacts for tenants.

24. In determining the Amended Development Application, I confirm that I am of the opinion the proposed development exhibits design excellence for the purposes of cl 6.21C of the SLEP.

Sydney Development Control Plan 2012

25. The parties agree that the Sydney Development Control Plan 2012 has been considered in the assessment of the Amended Development Application.

Remaining matters in s 4.15(1) of the EPA Act

26. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment (see pp 39 -40 of the Statement of Environmental Effects prepared by Urbis dated 21 December 2024 (SEE)).

27. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the development (see pp 39-40 of the SEE).

28. In respect of s 4.15(1)(d), the Development Application was publicly notified between 15 January and 6 February 2024. No objections were received in response to the notification

29. In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see p 40 of the SEE).

Conclusion

30. 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.

31. 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.

32. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its development application so as to rely on the following additional and amended materials:

2. The above documents were filed with the Court on 5 November 2024.

3. The parties agree that these amendments were minor in nature.

Orders

33. The Court orders that:

1. The appeal is upheld.

2. Development Application No. D/2024/13, as amended, for alterations and additions to the existing building on land identified as Lots 101, 102 and 103 in Deposited Plan 456820 and Lot 2 in Deposited Plan 181756 and known as 424-430 George Street, Sydney NSW 2000, is determined by the grant of development consent subject to the conditions included at Annexure A.

N Targett

Commissioner of the Court 

Annexure A

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Decision last updated: 22 November 2024