F & B Investments Pty Ltd v The Council of the City of Sydney

[2025] NSWLEC 1601

Land and Environment Court

New South Wales

Medium Neutral Citation:

F & B Investments Pty Ltd v The Council of the City of Sydney [2025] NSWLEC 1601

Hearing dates:

Conciliation conference on 8 July 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application D/2024/645 for alterations and additions to the ground floor, changing the current use from commercial/retail to additional hotel rooms and associated works, at premises known as 35 Mountain Street Ultimo, is determined by the grant of consent subject to the conditions contained at Annexure 'A'.

Catchwords:

DEVELOPMENT APPEAL – change of use – hotel development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 7.14, 6.21C

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

F & B Investments Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)

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

File Number(s):

2025/116753

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application D/2024/645 (DA) by the Council of the City of Sydney (Council).

2. The DA, as amended, seeks consent for alterations and additions to the ground floor, changing the current use from commercial/retail to additional hotel rooms on land at 35-39 Mountain Street, Ultimo, legally identified as Lot 100 in Deposited Plan 1230449 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (Court Act), at which I presided. The conference was held on 8 July 2025.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. Under s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments (Class 1), and the documents in Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. Council, as the relevant consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The plans and documents comprising the amended application are listed at [22].

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, as set out below.

8. Pursuant to s 23 of the EPA Regulation, owner’s consent has been provided for the DA.

9. The parties advise that all required notification and referral have been undertaken and that due consideration has been given to submissions. One submission by way of objection was received. The parties advise that the submission has been considered and the relevant matters addressed, noting that the matters raised relate to the operational management of the site. An updated plan of management was provided with the DA and the parties agree that this is satisfactory.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should it be required to do so. The site has not been identified as contaminated. As set out in the statement of environmental effects, 1943 imagery indicates that the existing buildings within the site are largely unchanged since that date. The parties are satisfied, and I accept, that the requirements of s 4.6 are met.

Sydney Local Environmental Plan 2012

11. The site is located within the MU1 Mixed Use zone. The parties agree, and I accept, that the DA is permissible with consent and consistent with the relevant zone objectives.

12. The original consent for this site exceeded the height and floor space ratio (FSR) standards in cll 4.3 and 4.4 of the Sydney Local Environmental Plan 2012 (SLEP). As this DA does not propose to increase the height and proposes to reduce the FSR, the parties agree that variations under cl 4.6 are not required.

13. Clause 5.10 applies because the site is within a heritage conservation area and to the south a heritage item exists opposite Smail Street. Based on the Heritage Impact Statement prepared by Urbis (9 June 2023), the parties agree, and I accept, that the proposed works will not have any adverse effects on the heritage item or heritage conservation area.

14. Pursuant to cl 5.21 of SLEP, a Flood Emergency Response Plan and Flood Impact and Risk Assessment have been prepared, and conditions of consent have been imposed with regard to flood planning, as agreed to by the flood experts. The requirements of cl 5.21 are satisfied.

15. Clause 7.14 applies because the site is shown on the Acid Sulfate Soils Map as being Class 2 land. The parties agree that the works are not below natural ground level and will not lower the watertable and consequently an acid sulfate soils management plan is not required. This is confirmed in the ABC Planning letter dated 30 July 2025.

16. Clause 6.21C(1) provides that development consent must not be granted unless the consent authority is of the opinion that the proposed development exhibits design excellence. Council is satisfied and I accept that the DA exhibits design excellence.

Other considerations

17. The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable and in the public interest.

18. While not a jurisdictional matter, the parties are satisfied that the DA, as amended, either complies with the relevant controls or is consistent with the relevant objectives in Sydney Development Control Plan 2012.

Conclusion

19. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

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

21. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation:

22. The Court notes that:

1. The Respondent, as the relevant consent authority, approves under s 38(1) of the EPA Regulation to the Applicant amending development application D/2024/645 in accordance with the following documents (the amended development application)

1. Architectural plans:

Plan	Drawn by	Dated
DA-000, Cover Sheet & Locality Plan, Issue D.	SJ Bishop Architect	14.07.2025
DA-002, Area Analysis Diagrams, Issue D.	SJ Bishop Architect	14.07.2025
DA-100, Existing Condition Plans – Basement, Issue D.	SJ Bishop Architect	14.07.2025
DA-101, Existing Conditions & Development Plan – Ground, Issue D.	SJ Bishop Architect	14.07.2025
DA-111, Proposed Floor Plan – Ground, Issue D.	SJ Bishop Architect	14.07.2025
DA-200, East Elevation, Issue D.	SJ Bishop Architect	14.07.2025
DA-201, South Elevation, Issue D.	SJ Bishop Architect	14.07.2025
DA-202, West Elevation, Issue D.	SJ Bishop Architect	14.07.2025
DA-300, Section A-A, Issue D.	SJ Bishop Architect	14.07.2025
DA-301, Section B-B, Issue D.	SJ Bishop Architect	14.07.2025
DA-500, Reflected Ceiling Plan – Ground Floor, Issue D.	SJ Bishop Architect	14.07.2025
DA-700, Materials & Finishes Concept.	SJ Bishop Architect	14.07.2025

2. Additional documents

Flood Impact and Risk Assessment Report, Revision C.	Egis.	4.07.2025
Flood Emergency Response Plan, Revision A.	Egis.	24.06.2025
Plan of Management – 11 Hotel Rooms to the Ground Floor of 35- 39 Mountain Street, Ultimo.	ABC Planning.	June 2025

Orders:

23. The Court orders that:

1. The appeal is upheld.

2. Development application D/2024/645 for alterations and additions to the ground floor, changing the current use from commercial/retail to additional hotel rooms and associated works, at premises known as 35 Mountain Street Ultimo, is determined by the grant of consent subject to the conditions contained at Annexure 'A'.

A Thorpe

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 22 August 2025