Lin v The Council of the City of Sydney

[2024] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lin v The Council of the City of Sydney [2024] NSWLEC 1248

Hearing dates:

Conciliation conference on 10 May 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The applicants written request pursuant to cl 4.6 of Sydney Local Environmental Plan 2012 seeking a variation to the development standard for maximum height set out in cl 4.3(2) of Sydney Local Environmental Plan 2012 prepared by Planning Ingenuity dated 21 February 2024 is upheld.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application, in the amount of $4,400.00 within 14 days from the date of these orders.

(4) Development application number D/2022/1163, as amended, for substantial demolition, alterations and additions to an existing terrace, including ground floor and first floor internal and external alterations, attic dormer and rear roof addition, associated landscape works, tree removal and excavation at the rear of the site for a sub-basement level, garage over and rear lane building above for Lot 1 in Deposited Plan 1282439, commonly known as 439 Liverpool Street, Darlinghurst, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to a terrace – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Part 6.2, ss 6.6, 6.7, 6.9

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

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.4, 5.10, 6.21C, 7.4

Category:

Principal judgment

Parties:

Tony Lin (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
G Visentin (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2023/166877

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing terrace at 439 Liverpool Street, Darlinghurst. The alterations include the construction of a garage structure on the rear of the site where the site has frontage to Cow Lane, containing a garage, gym and bedroom. The development application was refused by the respondent on 16 May 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 10 May 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 3 May 2024. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include changes to the extent of the alterations to be made so that there is minimal loss of the original fabric of the building. In particular, the entire rear wall of the principal building will be retained, as will most of the internal fabric including floor structure, floorboards, walls, ceilings, ceiling roses and nibs. The amendments also maintain a courtyard between the front building and the garage structure which meets controls with respect to private open space and deep soil zones. The amendments remove a balcony to the garage structure, introduce dormer windows, and change the design of the roof form of the garage structure so that it presents as a single storey structure with an attic above.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development application was made with the written consent of the owner of the site, and the Technical Memorandum by Cardno dated 9 November 2023 confirms that the proposed excavation and shoring will be within the boundary of the site and no works are proposed on the neighbouring property.

• The proposed development is for the purpose of an attached dwelling, which is permissible in the R1 General Residential zone in which the site is located, pursuant to the Sydney Local Environmental Plan 2012 (SLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 9m, pursuant to cl 4.3 of the SLEP. The height of the proposed development is 9.34m, which represents a contravention of 34cm above the numerical standard, but is below the ridge height of the existing building which is 9.54m. The ridge height will remain unchanged by the proposed development. The contravention is confined to the dormer windows. I am satisfied that the written request dated 21 February 2024, lodged pursuant to cl 4.6 of the SLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for the dormer windows, which are proportionate to the existing roof, achieve consistency with the presentation of the adjoining property, result in a design of the upper level that is characteristic of the period of the building and contributes to the heritage quality of the conservation area in which the site is located. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposed alterations maintain the existing roof pitch and the proposal is consistent with the objectives of the height development standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development complies with the development standard for floor space ratio in cl 4.4 of the SLEP, as well as with the maximum floor area for a laneway structure in cl 5.4 of the SLEP and the maximum number of car parking spaces for dwelling houses in cl 7.4 of the SLEP.

• The site on which the development is proposed is located within the Barcom Avenue Heritage Conservation Area (HCA), and the existing building is considered to be a contributory item in the HCA. I am satisfied, based on the Heritage Impact Statement prepared by Architectural Projects dated March 2023 that the proposed development will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the SLEP.

• Consistent with the requirements of cl 6.21C of the SLEP and, based on the amended design of the proposed development and the Statement of Environmental Effects dated 14 October 2022, I have considered the matters in cl 6.21C(2) and I am satisfied that the proposed development exhibits design excellence.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 20 February 2024.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The site is located within the area identified as the Sydney Harbour Catchment pursuant to Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). Based on the matters set out in the Jurisdictional Note, as well as the stormwater plans dated 20 March 2023, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

• The development application was notified between 25 November 2022 and 13 January 2023, and two submissions were received. In addition, the amended development application was notified between 19 December 2023 and 6 February 2024 and 5 submissions were received. I have considered the issues raised by the submissions received across both periods of notification.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. The Council of the City of Sydney, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application D/2022/1163 in accordance with the documents below:

1. Architectural Plans prepared by TEXCO design

1. DA001- Cover page;

2. DA002 – Survey;

3. DA003 – Proposed Site Plan, Rev 5 dated 4 December 2023;

4. DA004 – GFA Calculation, Rev 5, 4 December 2023;

5. DA005 – Deep Soil Zone, Rev 6, 10 January 2024;

6. DA006 – Building Height Diagram, Rev 5, 4 December 2023;

7. DA101 – Existing Ground Floor Plan, Rev 5, 4 December 2023;

8. DA102 – Existing Level 1 Plan, Rev 5, 4 December 2023;

9. DA103 – Existing Terrace Plan, Rev 5, 4 December 2023;

10. DA104 – Existing Roof Plan, Rev 5, 4 December 2023;

11. DA201 – Demolition Ground Floor Plan, Rev 5, 4 December 2023;

12. DA202 – Demolition Level 1 Plan, Rev 5, 4 December 2023;

13. DA203 – Demolition Terrace Plan, Rev 5, 4 December 2023;

14. DA204 – Demolition Roof Plan, Rev 5, 4 December 2023;

15. DA301 – Proposed Ground Floor Plan, Rev 6, 19 January 2024;

16. DA302 – Proposed Level 1 Plan, Rev 6 10 January 2024;

17. DA303 – Proposed Level 2 Plan, Rev 5, 4 December 2023;

18. DA304 – Proposed Roof Plan, Rev 5, 4 December 2023;

19. DA401 – Existing Suneye Diagrams, Rev 5, 4 December 2023;

20. DA402 – Proposed Suneye Diagrams, Rev 5, 4 December 2023;

21. DA501 – Existing Shadow Diagrams, Rev 5, 4 December 2023;

22. DA502 – Proposed Shadow Diagrams, Rev 5, 4 December 2023;

23. DA503 – Existing Shadow at 21st June for No. 441, Rev 5, 4 December 2023;

24. DA504 – Existing Shadow Court Yard View at 21st June for No. 441, Rev 5, 4 December 2023;

25. DA505 – Proposed Shadow Court Yard View at 21st June for No. 441, Rev 5, 4 December 2023

26. DA506 – Proposed Shadow Court Yard Viet at 21st December for No. 441, Rev 5, 4 December 2023;

27. DA601 – Northeast & Southwest Elevation, Rev 5, 4 December 2023;

28. DA602 – Northeast Elevation, Rev 5, 4 December 2023;

29. DA603 – Southwest Elevation, Rev 5, 4 December 2023;

30. DA604 – Southeast Elevation to Laneway, Rev P1, 2 February 2024;

31. DA701 – Section A; Rev 5, 4 December 2023;

32. DA702 – Section B, Rev 5, 4 December 2023;

33. DA703 – Section E & F, Rev 5, 4 December 2023;

34. DA704 – Section G, Rev 5, 4 December 2023.

2. Civil Engineering Driveway Plans, prepared by ACOR Consultants Pty Ltd, Issue F, dated 15 December 2023;

1. D1 – Cover Sheet & Notes;

2. D2 – Driveway and Garage Plan;

3. D3 – Long Section and Cross Sections – Sheet 1 of 2;

4. D4 – Long Section and Cross Sections – Sheet 2 of 2;

3. Structural Plans prepared by Stronghold;

1. SK001 – General Notes Revision 2, dated 18 November 2023;

2. SK1 – Proposed Demolishing Plan, Revision 3, dated 5 April 2024;

3. SK002 – Footing Foundation Plan, Revision 3, dated 5 April 2024;

4. SK002A – D/2022/1163 Section 6 Construction Stage, Revision 3, dated 5 April 2024;

5. SK003 – Ground Floor Plan, Revision 3, dated 5 April 2024;

6. SK004 – Proposed First Floor Plan, Revision 3, dated 5 April 2024;

7. SK005 – Proposed Attic Floor Plan, Revision 3, dated 5 April 2024;

8. SK006 – Proposed Roof Plan, Revision 3, dated 5 April 2024.

4. Clause 4.6 Variation (Height) Statement, prepared by Planning Ingenuity, dated 21 February 2024;

5. Technical Memorandum, prepared by Cardno now Stantec dated 9 November 2023;

6. BASIX certificate No. A475407_05, prepared by AENEC, dated 20 February 2024;

9. The Court orders that:

1. The appeal is upheld.

2. The applicants written request pursuant to cl 4.6 of Sydney Local Environmental Plan 2012 seeking a variation to the development standard for maximum height set out in cl 4.3(2) of Sydney Local Environmental Plan 2012 prepared by Planning Ingenuity dated 21 February 2024 is upheld.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application, in the amount of $4,400.00 within 14 days from the date of these orders.

4. Development application number D/2022/1163, as amended, for substantial demolition, alterations and additions to an existing terrace, including ground floor and first floor internal and external alterations, attic dormer and rear roof addition, associated landscape works, tree removal and excavation at the rear of the site for a sub-basement level, garage over and rear lane building above for Lot 1 in Deposited Plan 1282439, commonly known as 439 Liverpool Street, Darlinghurst, is determined by the grant of development consent subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

Annexure A

**********

Decision last updated: 15 May 2024