Haralambis Construction Pty Ltd v The Council of the City of Sydney

[2025] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

Haralambis Construction Pty Ltd v The Council of the City of Sydney [2025] NSWLEC 1297

Hearing dates:

Conciliation conference on 7 March, 21 March and 28 March 2025

Date of orders:

06 May 2025

Decision date:

06 May 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

In proceedings 2024/463769 (the Concept Consent): The Court orders that:

(1) Leave is granted to the Applicant to amend Modification Application D/2018/1208/A and rely on the amended plans and documents listed at Condition 2 of Annexure A.

(2) The appeal is upheld.

(3) Modification Application D/2018/1208/A (as amended), for the concept approval of building envelope for office premises, shop and car parking at 5-7 Bourke Road, Alexandria is determined by way of approval.

(4) Development Consent D2018/1208 is modified subject to the conditions of consent set out at Annexure A.

In proceedings 2024/463778 (the Stage Two Consent):

The Court orders that:

(1) Leave is granted to the Applicant to amend Modification Application D/2019/1195/A and rely on the amended plans and documents listed at Condition 1 of Annexure B.

(2) The appeal is upheld.

(3) Modification Application D/2019/1195/A (as amended), for the demolition of existing structures and construction of a commercial building, containing car parking, retail, office and business accommodation at 5-7 Bourke Road, Alexandria is determined by way of approval.

(4) Development Consent D/2019/1195 is modified subject to the conditions of consent set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – concept consent – stage two consent – alterations and additions – commercial building – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.24, 4.55, 4.56

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 98, 113

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Sydney Local Environmental Plan 2012, cll 1.2, 4.3, 4.4, 5.21, 6.21C, 7.6, 7.7, 7.13, 7.14, 7.16

Cases Cited:

Haralambis Construction Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1555

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Haralambis Construction Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
A Stipcevic (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/463769
2024/463778

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern two separate appeals – heard together by order of the Registrar of the Court – both of which relate to existing development consents for land at 5-7 Bourke Road, Alexandria (the site) controlled by Haralambis Constructions Pty Ltd (the Applicant).

The Concept Consent - proceedings 2024/463769

2. The first appeal deals with the deemed refusal of Modification Application D2018/1208/A (the Concept MA), made to the Council of the City of Sydney (the Respondent). The Concept MA seeks to amend an existing Concept Consent, D2018/1208 (the Concept DA). The Concept DA in turn establishes a building envelope for office premises, shop and car parking at the site.

3. The Concept MA seeks approval for an increase in the maximum height of the building envelope from 35m to 43.6m with a corresponding increase in the number of storeys from 9 to 10, and a reduction to the extent and depth of excavation of the basement level.

4. The Respondent granted consent to the Concept DA on 5 June 2019. The Concept MA was lodged with the Respondent on 26 October 2024.

The Stage Two Consent - proceedings 2024/463778

5. The second appeal deals with the deemed refusal of Modification Application D2019/1195/A (the Stage Two MA), also made to the Respondent. The Stage Two MA seeks to amend an existing Stage Two Consent, D2019/1195 (the Stage Two DA). The Stage Two DA grants consent for the demolition of the existing structures on site and the construction of a new nine-storey commercial office and retail building.

6. The Stage Two MA seeks approval for the following alterations and additions to the Stage Two DA:

1. Increase in building height from 35m to 43.6m and from nine to ten storeys.

2. Relocation of parking from the basement level to level 2.

3. The reduction of the size of the basement level and the required excavation.

4. The provision of an accessible communal landscaped terrace on the rooftop.

5. Changes to the proposed stormwater and landscape design.

6. Other minor changes to the design of the development.

7. Consent for the Stage Two DA was granted by this Court on 12 November 2020 in proceedings Haralambis Construction Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1555. The Stage Two MA was lodged with the Respondent on 31 October 2024.

The Conciliation Conference

8. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 March, 21 March and 28 March 2025. I presided over the conciliation conference.

9. During the conciliation conference, the parties reached agreement as to the terms of a decision in the two proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeals and granting approval to two amended MAs, subject to conditions.

10. Of note, each of the two MAs has been amended during the conciliation conference to resolve the contentions originally pressed by the Respondent, which included concerns for potential impacts to operational airspace, inconsistencies between the Concept DA and the Stage Two DA, a failure to exhibit design excellence, and inadequate stormwater design, deep soil provision and tree planting, amongst other contentions.

11. The design amendments include reducing the proposed increase in maximum building height to eliminate any impacts on operational airspace, changes to bring the Concept MA and Stage Two MA into consistency, and the provision of additional information. Collectively, these amendments are agreed to resolve the issues in this dispute.

12. 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' decision involves the Court exercising the function under ss 4.55 and 4.56 of the EPA Act to modify the existing Concept DA and Stage Two DA.

Satisfaction as to Jurisdiction

13. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

14. In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MAs have each been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

15. The parties agree, and I am satisfied, that both MAs were notified from 5 to 20 November 2024 to properties within a 25m radius of the site in accordance with the Respondent’s Community Engagement Strategy and Participation Plan 2023. No submissions were received in response to notification.

16. Accordingly, the parties agree, and I am satisfied, that pursuant to s 4.55(2)(c) and (d) of the EPA Act, the MAs have been appropriately publicly notified.

17. The parties agree, and I am satisfied, that pursuant to s 4.24(2) of the EPA Act, the two proposed MAs as amended, are in a form that ensures that the Concept DA (as sought to be modified) will remain ‘not inconsistent’ with the Stage Two DA (as sought to be modified).

18. Pursuant to ss 4.55(2)(a) and 4.56(1)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended Concept MA and amended Stage Two MA each remain substantially the same as their respective Concept DA and Stage Two DA.

19. More specifically, the amended Concept MA:

1. Retains the Concept DA’s approved building footprint.

2. Retains the approved building envelope with respect to setbacks, except for an increased upper level setback introduced to comply with provisions set out in the Sydney Development Control Plan 2012.

3. Provides the same extent of land dedication to the Respondent on the northern and southern portions of the site.

4. Retains the 3.6m floor-to-floor heights of all car parking and office levels.

5. Retains the approved indicative land use mix.

6. Retains the indicative land uses identified on the Ground Floor, Level 1, and Levels 3 to 8 of the concept building.

7. Retains the same description of the approved concept as a building envelope for office premises, shop and car parking.

20. And similarly, the amended Stage Two MA:

1. Retains the Stage Two DA’s approved maximum gross floor area and floor space ratio (FSR), other than minor corrections to these area calculations.

2. Retains the approved deep soil area in the south-eastern corner of the site on the ground floor.

3. Retains the approved 2.4m public domain setback, 1m landscaped setback, and 2m upper level setback on the southern elevation of the building.

4. Retains the extent of land dedication to the Respondent of the northern and southern portions of the site.

5. Retains the approved number of car, motorcycle and bicycle parking spaces.

6. Retains the 3.6m floor-to-floor height of Level 2 (now accommodating above ground car parking).

7. Will not change the nature or intensity of the use of the site.

8. Retains the categorisation of the approved development.

9. Retains the external appearance and presentation of the Ground Floor, Level 1 and Levels 3-7.

10. Retains substantially the same layout of the ground floor and configuration of the building.

11. Retains the location of the approved lifts and services immediately adjoining those lifts.

12. Retains the relationship to surrounding developments and character of the original approval.

21. The parties agree, and I am satisfied, that the Sydney Local Environmental Plan 2012 (SLEP) is the relevant local environmental planning instrument.

22. The parties agree, and I am satisfied, that pursuant to cl 1.2 - Aims of Plan - of the SLEP, both the MAs are consistent with the relevant aims of the SLEP.

23. The site is zoned E3 Productivity Support, and the MAs - characterised as development for the purposes of commercial office and retail building - are permissible with consent.

24. The parties agree, and I am satisfied, that pursuant to cl 4.3 - Height of buildings - of the SLEP, although the MAs result in additional building height beyond the Concept DA and Stage Two DA consents, the DAs (as modified) remain consistent with the 45m height of building development standard.

25. The parties agree, and I am satisfied that pursuant to cl 4.4 - FSR - of the SLEP, the amended MAs result in no additional floor space when compared with the corresponding Stage Two DA consent.

26. The parties agree, and I am satisfied that pursuant to cl 5.21 - Flood planning - of the SLEP, the site is identified as being on land within the flood planning area. A site flood assessment was submitted to the Respondent at the time the original DA assessments. The amended MAs remain satisfactory in terms of those matters raised in s 5.21(2) and (3) of the SLEP.

27. The parties agree, and I am satisfied, that the amended Stage Two MA continues to exhibit design excellence pursuant to cl 6.21C - Design excellence - of the SLEP. Relevantly, a competitive design process was conducted prior to the lodgment of the Stage Two DA as required by the provisions of cl 6.21C, and the parties agree that the amended MA continues to exhibit design excellence, retaining key architectural elements of the winning design competition scheme, including the green roof area.

28. The parties agree, and I am satisfied, that pursuant to cl 7.6 - Office premises and business premises - and cl 7.7 - Retail premises - of the SLEP, the site is situated on Category B land shown on the Land Use and Transport Integration Map and on Category E land within the Public Transport Accessibility Level Map. The amended MA continues to comply with the maximum car parking rates set out at cll 7.6(d) and 7.7(2)(a), with a provision of 31 car spaces.

29. The parties agree, and I am satisfied that pursuant to cl 7.13 - Contribution for the purpose of affordable housing - of the SLEP, an agreed condition of consent is imposed requiring a monetary contribution for the purposes of affordable housing.

30. The parties agree, and I am satisfied that pursuant to cl 7.14 - Acid Sulfate Soils - of the SLEP, the site is located within an area identified as Class 3 Acid Sulfate Soils. An acid sulfate soils management plan has been provided to the Respondent during the assessment of the Stage Two DA. The amended Stage Two MA reduces significantly the extent of excavation proposed to the basement level of less than 10% of the area and volume of that approved in the Stage Two consent.

31. The parties agree, and I am satisfied that pursuant to cl 7.16 - Airspace operations - of the SLEP, the MAs have each been amended to reduce the proposed increase in building height such that it does not penetrate the prescribed airspace identified on the Obstacle Limitation Surface or the Procedures for Air Navigation Services Operations Surface Map, being RL 51.00. The maximum height of the MAs is 50.85m.

32. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the Applicant has provided a Detailed Site Investigation to the Respondent as part of the original assessment of the Concept DA. An Additional Site Investigation and Remediation Action Plan was provided to the Respondent during the Stage Two DA assessment. These documents concluded that the site can be made suitable for the proposed use.

33. As part of the amended MAs, the reduced excavation and provision of car parking spaces above ground has the effect of reducing the extent of earthworks significantly and as a result will reduce associated environmental impacts including contamination.

34. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Pursuant to s 2.48 of SEPP Infrastructure, the site is situated within the vicinity of overhead powerlines. Accordingly, the Respondent referred the original Concept DA to the electricity supply authority for the area (Ausgrid) in accordance with s 2.48(2). Ausgrid did not raise any objection. The amended MA remains within the established boundaries of the site, and hence no further consideration of s 2.48 is required.

35. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

36. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MAs with the approval of the Respondent.

2. The Applicant has lodged the amended MA with the Court on 28 March 2025.

Orders

In proceedings 2024/463769 (the Concept Consent):

37. The Court orders that:

1. Leave is granted to the Applicant to amend Modification Application D/2018/1208/A and rely on the amended plans and documents listed at Condition 2 of Annexure A.

2. The appeal is upheld.

3. Modification Application D/2018/1208/A (as amended), for the concept approval of building envelope for office premises, shop and car parking at 5-7 Bourke Road, Alexandria is determined by way of approval.

4. Development Consent D2018/1208 is modified subject to the conditions of consent set out at Annexure A.

In proceedings 2024/463778 (the Stage Two Consent):

38. The Court orders that:

1. Leave is granted to the Applicant to amend Modification Application D/2019/1195/A and rely on the amended plans and documents listed at Condition 1 of Annexure B.

2. The appeal is upheld.

3. Modification Application D/2019/1195/A (as amended), for the demolition of existing structures and construction of a commercial building, containing car parking, retail, office and business accommodation at 5-7 Bourke Road, Alexandria is determined by way of approval.

4. Development Consent D/2019/1195 is modified subject to the conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

**********

463769.24 (Annexure A) (261108, pdf)

463778.24 (Annexure B) (514793, pdf)

468769, 463778.24 (Architectural Plans 1) (3776902, pdf)

468769, 463778.24 (Architectural Plans 2) (12858632, pdf)

Decision last updated: 06 May 2025