Emag Apartments Pty Ltd v The Council of the City of Sydney (No 2)

[2022] NSWLEC 1317

Land and Environment Court

New South Wales

Medium Neutral Citation:

Emag Apartments Pty Ltd v The Council of the City of Sydney (No 2) [2022] NSWLEC 1317

Hearing dates:

29-30 November 2021, 1 December 2021

Date of orders:

20 June 2022

Decision date:

20 June 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) By consent the Applicant is to pay the Respondents costs thrown away as a result of amending their development application at the commencement of the hearing pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as may be agreed or assessed.

(3) Development application DA/2021/304 for alterations and additions to an existing building, including demolition and construction of an 18 storey boarding house, ground floor retail, podium car parking, two levels of basement with pool, ancillary storage, plant, garbage rooms and bicycle parking at 93-105 Quay Street, Haymarket (Lot 2 DP 408335) is determined by the grant of consent subject to the conditions in Annexure A.

(4) All exhibits are returned except for Exhibits 1, C and the final architectural plans filed with the Court on 28 April 2022 which are to be retained.

Catchwords:

DEVELOPMENT APPLICATION: substantial demolition of existing building - construction of boarding house - directions made in earlier decision for amended plans – directions complied with – preconditions to the grant of consent met – development acceptable on merit - final orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021

Sydney Local Environmental Plan 2012, cl 6.21C

Cases Cited:

Emag Apartments Pty Ltd v The Council of the City of Sydney [2022] NSWLEC 1110

Category:

Consequential orders

Parties:

Emag Apartments Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
J Reid (Respondent)

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

File Number(s):

2021/190330

Publication restriction:

No

Judgment

1. COMMISSIONER: In a judgment given on 11 March 2022, Emag Apartments Pty Ltd v The Council of the City of Sydney [2022] NSWLEC 1110 (‘Emag v City of Sydney’), I gave a decision on an appeal concerning a development application for demolition, alterations and additions to an existing building and construction of a boarding house with ground floor retail and ancillary facilities. The development is proposed at 93-105 Quay Street, Haymarket (Lot 2 DP 408335).

2. In that decision, I found that the preconditions to the grant of development consent in the applicable environmental planning instruments at met by the proposed development application. I maintain my findings [14]-[21], [31]-[35], [50]-[54] and [56]-[60] in Emag v City of Sydney in relation to the development application in its final form. In particular, following a review of the development application in its final form and consideration of the further submissions made by Ms Reid on behalf of the Respondent, I maintain my findings of satisfaction that the proposed development exhibits design excellence satisfying the precondition contained at cl 6.21C of the Sydney Local Environmental Plan 2012 (LEP 2012). In reaching this state of satisfaction I have had regard to the matters listed at subcl (2) of cl 6.21C as they relate to the development application. I am satisfied that the preconditions to consider in the relevant environmental planning instruments are met by the development application.

3. In the decision, I found that the merits of the proposed development were acceptable. In particular I held that the amenity of the proposed indoor spaces on Level 3 was acceptable, at [92]. That the amenity of the communal open spaces will be satisfactory, at [103] and that, subject to conditions of consent, the amenity of the proposed boarding rooms is acceptable, at [119-123]. I am satisfied that the development is compatible with the character of the streetscape of the locality.

4. However, I considered that some changes were required to the development application prior to final orders being made to exclude any development proposed to occur in the portion of the existing building which is located on the adjoining lots, being Lot A in DP 962501 and Lot A in DP 180011. Similarly, the draft conditions of consent were required to be amended to reflect the findings of the judgment and the updated plans. Accordingly, the directions at [128] required amended plans and conditions to be filed with the Court.

5. In accordance with the terms of those directions, the parties have filed amended architectural drawings and updated conditions of development consent. The Respondent has confirmed the upload of the amended development application to the NSW Planning Portal, consistent with the requirements of cl 55 of the Environmental Planning and Assessment Regulation 2000 (which continues to apply, notwithstanding its repeal by the Environmental Planning and Assessment Regulation 2021).

6. Following an assessment pursuant to s 4.15 of the Environmental Planning and Assessment Act 1979 I maintain my findings that the proposed development is acceptable on merit and should be determined by the grant of consent subject to the annexed conditions.

7. The Court orders that:

1. The appeal is upheld.

2. By consent the Applicant is to pay the Respondents costs thrown away as a result of amending their development application at the commencement of the hearing pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as may be agreed or assessed.

3. Development application DA/2021/304 for alterations and additions to an existing building, including demolition and construction of an 18 storey boarding house, ground floor retail, podium car parking, two levels of basement with pool, ancillary storage, plant, garbage rooms and bicycle parking at 93-105 Quay Street, Haymarket (Lot 2 DP 408335) is determined by the grant of consent subject to the conditions in Annexure A.

4. All exhibits are returned except for Exhibits 1, C and the final architectural plans filed with the Court on 28 April 2022 which are to be retained.

.…………………………

D M Dickson

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 20 June 2022