Glaser v City of Sydney Council

[2019] NSWLEC 1360

Land and Environment Court

New South Wales

Medium Neutral Citation:	Glaser v City of Sydney Council [2019] NSWLEC 1360
Hearing dates:	Conciliation conference on 26 July 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans set out in Annexure A. The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (2) The appeal is upheld. (3) Development consent is granted to development application No. D/2018/194 for alterations and additions to a dwelling including internal and external changes, rear extension, excavation, landscaping, services upgrade, air condition and conservation works in respect of the property known as 52 Argyle Place, Millers Point and being all that land comprised in Lot 3 in DP 1205717, subject to the conditions of consent in Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – heritage conservation area - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Heritage Act 1977 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Neil Saul Glasser (Applicant) City of Sydney Council (Respondent)
Representation:	Solicitors: C Rose, Swaab (Applicant) A Singh, City of Sydney (Respondent)
File Number(s):	2018/390368
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) D/2018/194 by the Council of the City of Sydney (hereafter the Council) to make alterations and additions to a dwelling including internal and external changes, rear extension, excavation, landscaping, services upgrade, air condition and conservation works at Lot 3 DP 1205717, also known as 52 Argyle Place, Millers Point (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 July 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation and no submissions made after notification of the DA.

4. At the conciliation conference, the Court granted leave to rely on amended plans, and based on these amended plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA D/2018/194 with conditions.

5. Pursuant to s 34(3) of the LEC Act, 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 s 4.16(1) of the EPA Act to grant consent to DA D/2018/194 under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act, as consistency with: Heritage Act 1977; Environmental Planning and Assessment Regulation 2000 (EPA Reg); Sydney Local Environmental Plan 2012 (SLEP); and Sydney Development Control Plan 2012 (SDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

The proposed development satisfies the requirements of s 60 of the Heritage Act 1977, with the Heritage Council approving a (s 60) application for relevant works on 17 February 2019.

The requirements of cl 49 of the EPA Reg are satisfied by the provision of owners consent to the making of the development application, attached as supporting documentation to the DA, consistent with Schedule 1(2).

The parties agree that the relevant provisions of the SLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The parties have assessed that the proposed development does not contravene any development standards, except height and specifically resolves the following contentions:

Clauses 2.1 and 2.3 - the site is located within a in the R1 General Residential zone. The proposed alteration to an existing building is permissible in this zone, and is designed consistent with the zone objectives, specifically being in character with the local area.

Clause 4.4 – the proposed reduction in the dimension of the basement bathroom results in a floor space ratio (FSR) that is within and comparable with the required FSR established for the site.

Clause 5.10 – the amended plans address the requirements for heritage conservation. The site is located within the Millers Point and Dawes Point Conservation Area, and the forms part of the ‘Undercliffe Terraces’.

7. The parties explained that the existing building exceeds the height standard by 5.15m, and does not comply with the maximum height standard (of 9m), as required in cl 4.3 of the SLEP. Therefore, the parties agree that a cl 4.6 written request for variation of height is required for further consideration of the proposed development, pursuant to cl 4.6 of the SLEP, and that the Court must also be satisfied to grant consent to the DA. The Court grants leave to rely on the (amended) cl 4.6 written request for variation of the height standard, dated 28 May 2018.

8. The parties agree that a variation of the non-compliance with the height development standard in cl 4.3 of the SLEP is satisfied by the cl 4.6 written request that addresses the requirements for a cl 4.6 variation of the development standard.

9. The parties accept that the height non-compliance is on the existing building and that the proposed development as alterations to the existing structure does not increase or change the existing height of the building on the site. The parties agree that the cl 4.6 written request addresses the requirements as set out in the SLEP, and specifically that there are no amenity impacts to adjoining residences as a result of the proposed external changes to the façade of the building feature as a result of the height non-compliance.

10. It is agreed that on this basis, the cl 4.6 written request for standard variation addresses the requirements of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the breach, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area, and due to the limited alterations to the exterior, although above the height limit, will not be a dominant feature as viewed from the main street frontage or result in loss of amenity to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the other development standards.

11. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R1 zone) and the height standard (cl 4.3), as established in the SLEP. The proposed development is therefore reasonable and necessary. It does not result in further height above the existing non-compliance on the site. The proposed development is in the public interest.

12. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed and that a variation in the height standard, pursuant to cl 4.3, is appropriate as proposed in the development.

13. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the SDCP are resolved to the satisfaction of the parties. Specifically, the requirements of s 3.9 of the SDCP have been addressed.

14. I am satisfied that there are no jurisdictional impediments to this agreement and that DA D/2018/194 should be granted, based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act.

15. 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.

16. The Court orders:

1. The Applicant is granted leave to rely on the amended plans set out in Annexure A. The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The appeal is upheld.

3. Development consent is granted to development application No. D/2018/194 for alterations and additions to a dwelling including internal and external changes, rear extension, excavation, landscaping, services upgrade, air condition and conservation works in respect of the property known as 52 Argyle Place, Millers Point and being all that land comprised in Lot 3 in DP 1205717, subject to the conditions of consent in Annexure B.

……………………….

S Bish

Commissioner of the Court

Annexure A (16.1 MB, pdf)

Annexure B (284 KB, pdf)

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Decision last updated: 01 August 2019