Escudero v The Council of the City of Sydney

[2021] NSWLEC 1102

Land and Environment Court

New South Wales

Medium Neutral Citation:

Escudero v The Council of the City of Sydney [2021] NSWLEC 1102

Hearing dates:

Conciliation conference on 18 February 2021

Date of orders:

25 February 2021

Decision date:

25 February 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [11]

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

David Salvador Escudero (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
S Bhargava (Solicitor) (Applicant)
A Singh (Solicitor) (Respondent)

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

File Number(s):

2020/100004

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr David Escudero is the owner of a two-storey terrace house in Zetland to which alterations and additions were proposed by way of development application DA/2019/824 (the DA) that was subsequently refused by the Council of the City of Sydney (the Respondent), and which is now the subject of an appeal, brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The DA sought consent for:

1. A ground and first floor extension to the existing 2 storey terrace;

2. A first floor addition to the existing garage to create a rear laneway building, with a bridge connecting the rear building to the main dwelling;

3. Internal and external alterations to the existing terrace; and

4. Planting of a small tree within the rear courtyard, and pruning and removal of trees within the adjacent public park.

3. The appeal was originally listed for hearing before me on 18-19 February 2021. However, prior to the commencement of the hearing, the parties advised the Court that they had reached agreement, under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), as to the terms of a decision in the proceedings that was acceptable to the parties.

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 17 February 2021.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

6. 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. The parties 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 [11].

7. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed for the reasons that follow:

1. The site is located within the R1 General Residential zone according to the Sydney Local Environmental Plan 2012 (SLEP) in which attached dwelling development is permitted with consent.

2. The objectives of the R1 zone are in the following terms:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To maintain the existing land use pattern of predominantly residential uses.

3. The site is also located within the Zetland Estate Conservation Area as identified in Schedule 5 of the SLEP. On the basis of the amended plans, and the agreement of the parties, I consider the effect of the proposed development on the Zetland Estate Conservation Area to be acceptable in accordance with cl 5.10(4) of the SLEP.

4. As the proposed development is for external alterations to an existing building on land to which the SLEP applies, cl 6.21(3) of the SLEP requires the proposed development to exhibit design excellence. On the basis of the design excellence statement prepared by the Respondent, I am satisfied that the proposed development exhibits design excellence.

8. Finally, I am satisfied that the application is accompanied by a BASIX Certificate (Certificate No. A351936_03, dated 11 January 2021), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).

9. 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.

10. 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.

11. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. Leave is granted to the Applicant to rely upon the following amended plans and documents:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Level 01 proposed	1905-02-01-01	F	15 October 2020	Ian Moore architects
Level 02 – proposed	1905-02-01-02	F	15 October 2020	Ian Moore architects
Roof plan – proposed	1905-02-01-03	G	15 October 2020	Ian Moore architects
East and West Elevations – proposed	1905-02-02-01	F	15 October 2020	Ian Moore architects
South Elevation – proposed	1905-02-02-02	G	15 October 2020	Ian Moore architects
Section 01 – proposed	1905-02-03-01	G	15 October 2020	Ian Moore architects
Section 02 – proposed	1905-02-03-02	G	15 October 2020	Ian Moore architects
Section 03 + 04 – proposed	1905-02-03-03	F	15 October 2020	Ian Moore architects
Sections 05 + 06 – proposed	1905-02-03-04	G	15 October 2020	Ian Moore architects
Sections 07 + 08 – proposed	1905-02-03-05	F	15 October 2020	Ian Moore architects
Section 09 – proposed	1905-02-03-06	E	15 October 2020	Ian Moore architects
Section 10 – proposed	1905-02-03-07	C	15 October 2020	Ian Moore architects
View from the south	1905-15-3D-05	B	15 October 2020	Ian Moore architects
View from the east	1905-15-3D-11	B	15 October 2020	Ian Moore architects
Materials and colours schedule	1905-14-01-01	C	10 February 2021	Ian Moore architects
Reports
Updated tree assessment report prepared by David Bidwell dated 8 December 2020
BASIX Certificate No.A351936_03 prepared by Ian Moore Architects dated 11 January 2021

2. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000.00 by 30 June 2021.

3. The appeal is upheld.

4. Development Application no. DA/2019/824 for demolition of existing single storey rear addition and garage, and construction of a new storey rear addition and minor alterations to interior of existing house at 59 Portman Street, Zetland is approved, subject to conditions contained in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

Annexure A (246250, pdf)

Plans (1964197, pdf)

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Decision last updated: 25 February 2021