Jury v The Council of City of Sydney

[2023] NSWLEC 1369

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jury v The Council of City of Sydney [2023] NSWLEC 1369

Hearing dates:

Conciliation Conference 21 June 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Jurisdiction:

Class 1

Before:

Porter AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. D/2022/673, as amended, for alterations and additions to the existing residential dwelling, including the construction of a rear two-storey addition, swimming pool, double garage, landscaping, drainage and associated works at 43 Toxteth Road, Glebe, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – heritage – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Sydney Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 5.10, 6.21C, 7.3, 7.4, 7.14

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Paul Jury (Applicant)
The Council of City of Sydney (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

22/376679

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the refusal of development application D/2022/673 (development application) for alterations and additions to the existing residential dwelling, including the construction of a rear two-storey addition, a swimming pool, double garage, landscaping, drainage and associated works at 43 Toxteth Road, Glebe, legally described as Lot 43 in DP1112259 (the subject site).

2. Amended plans were filed with the Court 21 June 2023 (amended development application) cited in Annexure B. The amendments can be summarised as follows:

• Re-location of the garage/driveway access from Maxwell Street to Arcadia Lane;

• Adjustment of roof pitch over Maxwell Road and Arcadia Lane to match the proportions of the existing roof pitch;

• Privacy glazing for the ground floor bathroom;

• Reinstatement of the original veranda & decorative arches over the butler’s pantry; and,

• Further details as to the materials and finishes of the garage door/enclosure, external wall(s), timber gate and pergola structure.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 June 2023. I have presided over the conciliation conference.

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. This decision involved the Court upholding the appeal for the amended development application and granting development consent to the amended development application subject to conditions.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 LEC Act, as set out below.

8. I am satisfied that owners consent accompanied the development application.

9. The subject site is zoned R1 General Residential pursuant to the Sydney Local Environmental Plan 2012 (SLEP), where the proposed development is permissible with consent. In accordance with cl 2.3, I have had regard to the objectives of the zone:

To provide for the housing needs of the community

To provide for a variety of housing types and densities

To enable other land uses that provide facilities or services to meet the day to day needs of residents

To maintain the existing land use pattern of predominantly residential uses

10. Clause 4.3 Height of Buildings of the SLEP applies to the site. The parties agree that the proposal is below the maximum permitted building height.

11. Clause 4.4 Floor Space Ratio of the SLEP applies to the subject site. The parties agree that the proposal is below the maximum permitted floor space ratio.

12. As the subject site is located within the Toxteth Heritage Conservation Area and in the vicinity of Heritage Items, cl 5.10 Heritage Conservation of the SLEP applies. On the basis of the amended application, including the supplementary Heritage Impact Statement prepared by John Oultram Heritage and Design dated June 2023, the parties agree that the amended development application responds appropriately to the Toxteth Heritage Conservation Area and satisfies the provisions of cl 5.10 of the SLEP.

13. Clause 6.21C Design Excellence of the SLEP applies to the site. The parties agree, and I am satisfied, that the amended development application exhibits design excellence for the reasons set out in the Addendum Statement of Environmental Effects prepared by BBC Consulting Planners dated 8 June 2023 (Addendum SEE). The parties agree that the design of the proposal has had regard to the provisions of cl 6.21C, the design and materials are of high quality and the design responds to the Toxteth Heritage Conservation Area.

14. Clauses 7.3 and 7.4 of SLEP in relation to maximum car parking spaces applies to the subject site. The parties agree, and I am satisfied, that the proposal does not exceed the maximum car parking spaces permitted for Category C of the Land Use and Transport Integration Map.

15. The parties agree that the provisions of cl 7.14 Acid Sulfate Soils of the SLEP do not require addressing as the proposal would not likely lower the water table below 1m of the Australian Height Datum.

16. The parties agree that the proposal is accompanied by an amended BASIX Certificate filed with the amended plans to satisfy the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

17. The parties agree, and I am satisfied, that the subject site has a long history of residential use and the provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed (Statement of Environmental Effects prepared by BBC Consulting Planners dated July 2022).

18. The Respondent renotified the development application between 8 July 2022 and 25 July 2022, as well as the amended development application (architectural plans) between 9 May 2023 and 23 May 2023. The amended development application received nine submissions, including six objections, one in support and two comments. The Respondent, as the consent authority, has considered the concerns expressed and explained to the Court that they are satisfied that the amended development application has satisfactorily addressed these concerns.

Conclusion

19. 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.

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

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

22. The Court notes the Applicant has filed a copy of the amended documents cited at Annexure B with the Court on 21 June 2023.

23. The Respondent, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No. D/2022/673 in accordance with the documents listed in Annexure B. I note that the Applicant is not required to lodge the amended development application on the NSW Planning Proposal in accordance with s 38(4) of the Environmental Planning and Assessment Regulation 2021.

24. The Court notes the Respondent’s reasons for agreement to the terms of the decision, set out below:

• The amended proposal has addressed the reasons for refusal through submission of amended architectural plans, landscape plans and a stormwater management plan. Where information is outstanding, it is minor in nature and has been addressed via conditions of consent.

• The amended proposal, subject to conditions, generally complies with the relevant provisions contained in the SLEP and the relevant objectives and provisions contained in the Sydney Development Control Plan 2012.

• The amended proposal is consistent with the 6m height of buildings development standard as well as the 0.7:1 floor space ratio development standard.

• The amended proposal is sympathetic to the existing dwelling and with that of the surrounding built form and includes improved variety of materiality that is commensurate with the immediate locality. As amended, the proposed scheme is considered to satisfy the design excellence provisions.

• The amended proposal will provide adequate amenity for future residents and to neighbouring properties, subject to conditions.

• The amended proposal will not result in adverse environmental impacts and is considered to be in the public interest in accordance with s 4.15 of the EPA Act.

Orders:

25. The Court orders:

1. The appeal is upheld.

2. Development Application No. D2022/673, as amended, for alterations and additions to the existing residential dwelling, including the construction of a rear two-storey addition, swimming pool, double garage, landscaping, drainage and associated works at 43 Toxteth Road, Glebe, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

S Porter

Acting Commissioner of the Court

376679.22 Annexure A

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Decision last updated: 14 July 2023