Karakatsis Holdings Pty Ltd v City of Sydney

[2019] NSWLEC 1273

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karakatsis Holdings Pty Ltd v City of Sydney [2019] NSWLEC 1273
Hearing dates:	Conciliation conference on 6 – 7 June 2019
Date of orders:	18 June 2019
Decision date:	18 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans contained at Annexure A. (2)   The Appeal is upheld. (3)   Consent is granted to modification application D/2017/994/C modify Development Consent D/2017/994 to add an ensuite bathroom to Bedroom 2 of Apartment 2 to the approved dual occupancy development at 1 Reuss St, Glebe, subject to the conditions at Annexure B.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Karakatsis Holdings Pty Ltd (Applicant) City of Sydney (Respondent)
Representation:	Solicitors: J Palmer, Pikes and Verekers Lawyers (Applicant) M Mallos, Maddocks (Respondent)
File Number(s):	2019/122353
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal by City of Sydney Council (hereafter the Council) of Modification Application (MA) D/2017/994/C, which seeks extension of an approved first floor level at the rear to create an ensuite, on Lot A DP 102727, also known as 1 Reuss Street, Glebe (hereafter the Site).

2. The site is currently a dual occupancy development under construction as approved under D/2017/994 as one dwelling on each floor.

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

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 6 and 7 June 2019. I presided over the conciliation conference. There were no objectors heard at the conciliation.

5. 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 is to uphold the appeal and grant consent to MA D/2017/994/C which modifies the consent D/2017/994 with amended conditions and plans.

6. Pursuant to s 34(3) of the LEC Act 1979, 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 4.55(1A) of the EPA Act 1979 to grant consent to the MA (D/2017/994/C) with conditions.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(1A) of the EPA Act 1979, as consistency with: Sydney Local Environmental Plan 2012 (SLEP); and Sydney Development Control Plan 2012 (SDCP). The parties agree that the amended plans and proposed conditions of consent relate to the merits of the proposal.

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

1. Clause 4.4 – the extension to the rear of level 1 results in a floor space ratio (FSR) increase by 2 m2, and an FSR exceedance of the standard. The exceedance of this standard is minimal and satisfies the objectives of the standard, therefore does not require further consideration for the grant of the MA.

2. Clause 6.21 – the proposed extension of the rear of the development with no setback on level 1 does not extend the length of the boundary and will not cause adverse visual or overshadowing impact to adjoining properties. The bulk of the modification is therefore acceptable.

9. Based on the amended plans and supporting documents to the MA, the contentions that relate to the controls of the SDCP are resolved.

10. The parties agree that the proposed modification, which is limited to the extension of the rear portion of the development to accommodate an ensuite to Bedroom 2, does not result in further environmental impact and is substantially the same as already approved. The MA was notified consistent with the SDCP and no submissions were received during the notification period.

11. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the MA, based on the amended plans as provided in the conditions of consent, satisfies the requirements of s 4.55(1A) of the EPA Act 1979.

12. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

13. The Court orders:

1. The Applicant is granted leave to rely on the amended plans contained at Annexure A.

2. The Appeal is upheld.

3. Consent is granted to modification application D/2017/994/C modify Development Consent D/2017/994 to add an ensuite bathroom to Bedroom 2 of Apartment 2 to the approved dual occupancy development at 1 Reuss St, Glebe, subject to the conditions at Annexure B.

……………………………

S Bish

Commissioner of the Court

Annexure A (3.44 MB, pdf)

Annexure B (84.8 KB, pdf)

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Decision last updated: 18 June 2019