Lwos Pty Limited v The Council of the City of Sydney
[2021] NSWLEC 1707
•23 November 2021
Land and Environment Court
New South Wales
Medium Neutral Citation: LWOS Pty Limited v The Council of the City of Sydney [2021] NSWLEC 1707 Hearing dates: Conciliation conference on 17 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development D/2021/550 for the demolition of existing structures and construction of an attached dual occupancy with attached garages and Torrens title subdivision at 128-130 Belmont Street, Alexandria is approved subject to the conditions of consent in Annexure ‘A’.
(3) The development consent is registered on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days.
(4) The notice of the granted of Development Application No. D/2021/550 is published in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) within 14 days.
Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – dual occupancy dwellings – compatibility with character and streetscape – amenity
Legislation Cited: Environmental Planning and Assessment Act 1979,
ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, ss 34, 34AA
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007, cl 45
Sydney Local Environmental Plan 2012, cll 2.3, 2.6, 5.10, 6.21, 7.14
Texts Cited: Sydney Development Control Plan 2012
Category: Principal judgment Parties: LWOS Pty Limited (Applicant)
The Council of the City of Sydney (Respondent)Representation: Counsel:
Solicitors:
J Oldknow (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)
File Number(s): 2021/208035 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) D/2021/550 by the City of Sydney Council (the Council), which seeks demolition of existing structures and removal of selected trees, construction of a dual occupancy dwelling and Torrens title subdivision into two lots on Lot 1 DP 745845, also known as 128-130 Belmont Street, Alexandria (the site).
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The DA was submitted to Council on 19 May 2021, and after notification, made consistent with relevant planning controls, four submissions in objection were received.
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The DA was internally assessed and referred to relevant authorities.
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The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The Court agreed to a conciliation conference, pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held primarily by MS Teams.
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The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA that contextualise the site.
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The site is approximately 305.2m2 in area, with its primary frontage to Belmont Street and secondary frontage to Lawrence Lane.
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The site is occupied by an existing single storey dwelling, and landscaping through the rear, consistent with the heritage character of the surrounding area.
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Based on the amended plans and documents, together with the DA’s other supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA D/2021/550, subject to conditions.
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Pursuant to s 34(3) of the Court Act, 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 4.16 of the EPA Act and being satisfied, pursuant to s 4.15 to grant consent to DA D/2021/550, subject to conditions in Annexure ‘A’.
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The parties identified the jurisdictional prerequisites of particular relevance for the Courts consideration in these proceedings as consistency with the: Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); and Sydney Local Environmental Plan 2012 (SLEP). In addition, the relevant requirements of the Sydney Development Control Plan 2012 (SDCP) are considered.
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The Council agreed for the applicant to amend the plans and documents, that support the amended DA, pursuant to cl 55 of the EPA Reg, and which does not change the advice of the referral bodies.
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The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended, has been sighted, and is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.
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The Council assesses that the site has no known history of contamination, being historically for residential use, and that the proposed development, including conditions of consent satisfies the requirements of cl 7 of SEPP 55.
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The site is located within 5m of an exposed overhead electricity power line, therefore cl 45 of the SEPP Infrastructure is relevant for consideration. In satisfaction of cl 45, the DA was referred to Ausgrid, who indicated no objection based on conditions included in the consent, as provided in Annexure A.
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The proposed subdivision and dual occupancy (dwelling) are permissible with consent in the R1 General Residential zone, pursuant to cll 2.3 and 2.6 of the SLEP. The relevant standard and provisions, as established in the SLEP are satisfied.
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The site is located within the Cooper Estate Conservation Area, although the existing dwelling is considered a ‘distracting’ item. Pursuant to cl 5.10 of the SLEP, the parties agree that amended design and heritage assessment that supports the DA responds to the character of the conservation area and addresses the relevant objectives.
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The parties agree that the amended DA exhibits the requirements for design excellence in cl 6.21 of the SLEP, which resolves the contention as raised by Council.
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The site is underlain by Class 5 acid sulphate soils (ASS), pursuant to cl 7.14, and the parties agree that the requirements of cl 7.14 are achieved by the propsoed excavation and ASS Management Plan.
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With regards to the controls of the SDCP, those relating to the character of the Cooper Estate Conservation Area, is also relevant for consideration. The DA was notified to residents, which the Council explains was done consistent with the requirements of the SDCP. Four submissions in objection were received for the original DA, and after renotification two submissions were received regarding the amended DA. The parties have considered these submissions in the amendments to the DA and conditions of consent.
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The Council has undertaken the relevant merit assessment and is satisfied to make the agreement. The amended plans that relate to the proposed development have been considered in the context of the site. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the contentions raised by Council are resolved to the satisfaction of the parties.
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Based on the evidence before the Court, I have considered and am satisfied that the proposed development satisfactorily addresses s 4.15 of the EPA Act. With regards to s 4.15(1), I understand that the likely impacts of the proposed development are acceptable, the site is suitable, and the proposed development is in the public interest.
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Based on the amended plans and supporting documents to the amended DA, I accept that the contentions raised by Council and all jurisdictional requirements are resolved. I am satisfied that there are no jurisdictional impediments to this agreement and that DA D/2021/550 should be granted, as it satisfies the requirements of s 4.15 of the EPA Act.
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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 Court Act to dispose of the proceedings in accordance with the parties' decision.
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The Court notes that:
That the Council of the City of Sydney, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application D/2021/550.
That the amended application was lodged on the NSW planning portal on 11 November 2021.
That the Applicant subsequently filed the amended application with the Court on 11 November 2021.
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The Court orders:
The appeal is upheld.
Development consent is granted to Development D/2021/550 for the demolition of existing structures and construction of an attached dual occupancy with attached garages and Torrens title subdivision at 128-130 Belmont Street, Alexandria is approved subject to the conditions of consent in Annexure ‘A’.
The development consent is registered on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days.
The notice of the granted of Development Application No. D/2021/550 is published in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) within 14 days.
…………………………
Sarah Bish
Commissioner of the Court
Annexure A (289795, pdf)
Annexure B (101546, pdf)
Annexure C (99253, pdf)
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Decision last updated: 23 November 2021
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