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

[2020] NSWLEC 1555

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

Conciliation conference on 7 and 18 September and 21 October 2020, final agreement filed 4 November 2020

Date of orders:

12 November 2020

Decision date:

12 November 2020

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the amended architectural plans prepared by Candalepas Associates and set out in Condition 1 of Annexure A.

(2) The Applicant’s written request under clause 4.6 of the Sydney Local Environmental Plan 2012, prepared by SJB Planning, dated 1 October 2020, seeking to vary the development standard for floor space ratio under clause 4.4 of the Sydney Local Environmental Plan 2012 is upheld.

(3) The appeal is upheld.

(4) Development Consent is granted to D/2019/1195 for the demolition of existing structures and construction of a nine storey commercial building, containing ground floor retail accommodation, car parking at basement level and level 1, and office and business accommodation above, at 5-7 Bourke Road, Alexandria, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 64—Advertising and Signage

Sydney Local Environmental Plan 2012

Water Management Act 2000

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Hones (Solicitor) (Applicant)
M Mallos (Solicitor) (Respondent)

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

File Number(s):

2020/105216

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application D/2019/1195 (DA). The DA sought consent for the demolition of existing structures and construction of a nine storey commercial building containing car parking at basement level and level 2, ground floor retail premises, and office uses above (the proposal) at 5-7 Bourke Road, Alexandria (the site) by the Council of the City of Sydney (the Council).

2. 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 7 and 18 September, and 21 October 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. The amended proposal is for the demolition of existing structures and construction of a nine storey commercial building, containing ground floor retail accommodation, car parking at basement level and level 1, and office and business accommodation above. The proposal has been amended to resolve the contentions raised by the Respondent.

6. The parties agree, and I am satisfied, the nature of these amendments are minor and therefore no order is required pursuant to s 8.15(3) of the EPA Act.

7. 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 s 4.16 of the EPA Act to grant consent to the development application.

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

9. In that regard, the parties agree, and I am satisfied, the Sydney Local Environmental Plan 2012 (SLEP) is the relevant environmental planning instrument. The site is zoned B7 Business Park zone, and the amended proposal is permissible with consent.

10. The amended proposal is consistent with all relevant development standards contained within the SLEP, except for a non-compliance with the maximum floor space ratio set out in cl 4.4 of the SLEP. The amended proposal has a floor space ratio of 3.866:1, which represents a variation of approximately 0.4% beyond the relevant numerical development standard of 3.85:1, including an additional 10% floor space bonus for design excellence as set out in cl 6.21 of the SLEP.

11. Clause 4.6(3) of the SLEP requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

12. Clause 4.6(4) of the SLEP requires the consent authority to be satisfied the applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

13. Additionally, cl 4.6(4)(b) of the SLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

14. The applicant has provided an amended clause 4.6 written request, prepared by SJB Planning and dated 1 October 2020, seeking to justify non-compliance with the floor space ratio development standard, and demonstrate the objectives set out in cl 4.4 of the SLEP have been met.

15. The floor space ratio exceedance is attributable to the inclusion of approximately 22 square metres within the calculation for gross floor area. This 22 square metre area is associated with a ground floor lobby configured as a breezeway, and open to the weather at either end. The extent of non-compliance with the floor space ratio development standard is relatively minor, and the amended proposal has been otherwise designed to be situated within a building envelope determined by the relevant controls described within the Sydney Development Control Plan 2012. As such, I am satisfied the objectives of the floor space ratio development standard are achieved notwithstanding non-compliance with the standard. Accepting the amended proposal is consistent with the objectives for development in the B7 land use zone, I consider the development will be in the public interest.

16. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the floor space ratio development standard.

17. Additionally, I am satisfied the relevant provisions of the Water Management Act 2000 have been considered. Water New South Wales has issued general terms of approval for the amended proposal. Conditions of consent have been imposed to ensure these terms are implemented.

18. I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been considered. The Applicant has submitted an amended Remediation Action Plan, prepared by EI Australia, and dated 21 April 2020. Conditions of consent have been imposed to ensure the recommendations of this Plan are implemented.

19. I am satisfied the relevant provisions of State Environmental Planning Policy No 64—Advertising and Signage have been considered. The amended proposal omits an earlier proposal for an illuminated top of building sign. Conditions of consent have been imposed to ensure the submission of a signage strategy for Council’s approval prior to the issue of any Occupation Certificate.

20. I am satisfied the relevant provisions of State Environmental Planning Policy (Infrastructure) 2007 have been considered. The original DA was referred to Ausgrid on 14 November 2019, and subsequently Ausgrid confirmed it has no assets in close proximity to the site.

21. 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.

Orders

22. The Court orders that:

1. Leave is granted to the Applicant to rely on the amended architectural plans prepared by Candalepas Associates and set out in Condition 1 of Annexure A.

2. The Applicant’s written request under clause 4.6 of the Sydney Local Environmental Plan 2012, prepared by SJB Planning, dated 1 October 2020, seeking to vary the development standard for floor space ratio under clause 4.4 of the Sydney Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development Consent is granted to D/2019/1195 for the demolition of existing structures and construction of a nine storey commercial building, containing ground floor retail accommodation, car parking at basement level and level 1, and office and business accommodation above, at 5-7 Bourke Road, Alexandria, subject to the conditions of consent in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (401827, pdf)

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Decision last updated: 12 November 2020