Elizabeth8 Pty Ltd v The Council of the City of Sydney
[2019] NSWLEC 1511
•31 October 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Elizabeth8 Pty Ltd v The Council of the City of Sydney [2019] NSWLEC 1511 Hearing dates: Conciliation conference on 17 October 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders:
(1) Leave is granted to the Applicant to rely upon the amended plans in Annexure “A”.
(2) The appeal is upheld.
(3) The modification application lodged directly with the Court on 12 November 2018 to modify Development Consent No. D/2015/1693, which the Court granted by way of orders made on 16 December 2016, for the purposes of demolition of existing structures and construction of a 6 storey building containing 39 boarding house rooms, two ground floor retail tenancies and bicycle parking at 202-210 Elizabeth Street, Surry Hills is determined by approving the modifications as set out in Annexure “B”.
(4) As a consequence of (3) above, Development Consent No D/2015/1693 is now subject to the consolidated, modified conditions of development consent set out in Annexure “C”.Catchwords: MODIFICATION 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 (Building Sustainability Index: BASIX) 2004
Sydney Local Environmental Plan 2012Texts Cited: Sydney Development Control Plan 2013 Category: Principal judgment Parties: Elizabeth8 Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)Representation: Counsel:
Solicitors:
K Dennis (Solicitor) (Applicant)
K Morrin (Solicitor) (Respondent)
Mills Oakley (Applicant)
Sydney City Council (Respondent)
File Number(s): 2018/347034 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal made direct to the Land and Environment Court (LEC) to modify D/2015/1693 by changes to the internal layout of boarding rooms, outdoor area and communal kitchen, removal of some balconies, and provision of a managers room on Lots 1, 2 and 3 DP 8410, also known as 202-210 Elizabeth Street, Surry Hills (hereafter the Site).
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The site is currently approved, as a 6 storey, 38-room boarding house, with two ground floor retail tenancies and bicycle parking, under D/2015/1693 by orders made of the LEC on 16 December 2016.
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This Class 1 appeal is made under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 17 October 2019. I presided over the conciliation conference. There were no objectors heard at the conciliation.
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At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court and to the parties. This decision is to uphold the appeal and grant consent to modify D/2015/1693 based on amended conditions and plans.
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Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under ss 4.55(8) and 4.55(1A) of the EPA Act 1979 to grant consent to modify D/2015/1693, with amended conditions and plans.
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The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(1A) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Sydney Local Environmental Plan 2012 (SLEP); and Sydney Development Control Plan 2013 (SDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.
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The parties agree that the relevant provisions of the SEPP ARH and SEPP BASIX have been satisfied by the amended plans, an existing, applicable BASIX certificate and dealt with by condition.
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The provisions of the SLEP are relevant as they relate to a boarding house with retail space. The parties agree that the requirements of the SLEP are addressed to their satisfaction by the supporting documents and amended plans to modify the approved consent, as sought under this appeal.
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Based on the amended plans and supporting documents assessed under this appeal, the contentions that relate to the controls of the SDCP are resolved to the satisfaction of the parties.
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The parties agree that the proposed modification, which will continue to function as a boarding house with two retail spaces, does not result in further environmental impact and is substantially the same as already approved. The proposed amended plans were initially notified, consistent with the SDCP and no submissions were received during the notification period. No further notification of subsequent amended plans was required under the SDCP, as changes were minor and did not result in any adverse impact.
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I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the modification sought under this appeal to D/2015/1693, based on the amended plans and conditions of consent, satisfies the requirements of ss 4.55(8) and (1A) of the EPA Act 1979.
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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 1979 to dispose of the proceedings in accordance with the parties' decision.
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The Court orders:
Leave is granted to the Applicant to rely upon the amended plans in Annexure “A”.
The appeal is upheld.
The modification application lodged directly with the Court on 12 November 2018 to modify Development Consent No. D/2015/1693, which the Court granted by way of orders made on 16 December 2016, for the purposes of demolition of existing structures and construction of a 6 storey building containing 39 boarding house rooms, two ground floor retail tenancies and bicycle parking at 202-210 Elizabeth Street, Surry Hills is determined by approving the modifications as set out in Annexure “B”.
As a consequence of (3) above, Development Consent No D/2015/1693 is now subject to the consolidated, modified conditions of development consent set out in Annexure “C”.
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S Bish
Commissioner of the Court
Annexure A (2.09 MB, pdf)
Annexure B (53.5 KB, pdf)
Annexure C (254 KB, pdf)
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Decision last updated: 31 October 2019
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