Hyside Projects Subthree Pty Ltd v City of Canada Bay Council No 2

[2022] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hyside Projects Subthree Pty Ltd v City of Canada Bay Council No 2 [2022] NSWLEC 1122

Hearing dates:

9, 10 and 30 September 2021

Date of orders:

09 March 2022

Decision date:

09 March 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) The applicant’s written request pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 seeking to justify the contravention of the development standard in cl 4.3 of the Canada Bay Local Environmental Plan 2013 is upheld.

(3) Development Application No 2020/0247 seeking consent for the erection of a residential flat building containing 99 apartments, site preparation including demolition, excavation, landscaping and other related works at 10 Chapman Street Strathfield, legally described as Lot 62 in DP 1266884 is approved subject to the conditions set out in Annexure “A” to this agreement.

(4) Exhibits 4, 5, 12 and 13 to be returned.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – contravention of maximum building height development standard – bulk and scale – flood planning - apartment design principles – view loss – bicycle parking – waste management - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.6

Cases Cited:

Hyside Projects Subthree Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1062

Category:

Principal judgment

Parties:

Hyside Projects Subthree Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
T Hale SC (Applicant)
H Irish (Respondent)

Solicitors:
Fortis Law (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2021/16794

Publication restriction:

No

Judgment

1. COMMISSIONER: This is class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of Development Application No 2020/0247 seeking consent for the erection of a residential flat building containing 99 apartments, site preparation including demolition, excavation, landscaping and other related works (the Proposed Development) at 10 Chapman Street Strathfield, legally described as Lot 62 in DP 1266884 (formerly known and referred to as 10-12 Chapman Street Strathfield, legally described as Lot A in DP 378136 and Lot 52 in DP 1252433) (the Site)

2. On 11 February 2022, I handed down my reasons for judgment in the Class 1 appeal (Hyside Projects Subthree Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1062) to uphold the appeal subject to conditions.

3. I directed the Council to prepare and file conditions of consent in the requisite template and to provide them to the Court.

4. The Council filed the conditions in accordance with my direction on 2 March 2022 and the parties drew to my attention the additional condition of consent at ‘Condition 3 DAGCA08 – Sydney Trains Requirements’ explaining that this additional condition has been included at the request of Sydney Trains.

5. On 22 February 2022, after having read the judgment, Sydney Trains advised the parties if the words “the relevant” ahead of all references to a “Construction Certificate” are inserted in accordance with [104] of judgment, ‘Sydney Trains will require involvement to ensure that appropriate conditions are applied to and complied with by the Applicant for all stages of development that are considered relevant by Sydney Trains.’

6. While this condition is in addition to the conclusions of the judgment at [102]-[130], the parties have both agreed to its insertion and for the reason at par 5 in this judgment, the Court will grant consent in accordance with the conditions of consent filed on 2 March 2022.

Orders

7. The Court orders that:

1. The Appeal is upheld.

2. The applicant’s written request pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 seeking to justify the contravention of the development standard in cl 4.3 of the Canada Bay Local Environmental Plan 2013 is upheld.

3. Development Application No 2020/0247 seeking consent for the erection of a residential flat building containing 99 apartments, site preparation including demolition, excavation, landscaping and other related works at 10 Chapman Street Strathfield, legally described as Lot 62 in DP 1266884 is approved subject to the conditions set out in Annexure “A” to this agreement.

4. Exhibits 4, 5, 12 and 13 to be returned.

E Espinosa

Commissioner of the Court

Annexure A (535729, pdf)

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