Ng v The Council of the City of Sydney

[2022] NSWLEC 1476

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ng v The Council of the City of Sydney [2022] NSWLEC 1476

Hearing dates:

26 August 2022

Date of orders:

09 September 2022

Decision date:

09 September 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act, 1979 in the sum of $10,000.00 within 28 days from the date of these orders.

(2) The Appeal is upheld.

(3) Development Application No D/2021/819 for the alterations and additions to a commercial development and the use of the site as a bakery and restaurant on land at 32 Burton Street Darlinghurst is approved subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

South Sydney Local Environmental Plan 1998

State Environmental Planning Policy No 55 - Remediation of Land, cl 7

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, 5.21, 6.21C, 7.14, 7.20

Texts Cited:

Council of the City of Sydney, Community Participation Plan, 2019

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021)

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Ping Jin Ng (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
E Whitney (Solicitor)(Applicant)
A Singh (Solicitor)(Respondent)

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

File Number(s):

2021/322180

Publication restriction:

No

Judgment

1. COMMISSIONER: Ping Jin Ng (the Applicant) has appealed the refusal by the Council of the City of Sydney (the Respondent) of development application D/2021/819, made with owner’s consent, seeking consent for alterations and additions to a commercial development and the use of the site (the Proposed Development) at 32 Burton St, Darlinghurst (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Subject Site has an area of some 257m², and:

1. is zoned B4 Mixed use under the provisions of Sydney Local Environmental Plan 2012 (SLEP);

2. presents to Burton Street as a single storey sandstone building with attic. The levels on the Site fall from south to north and the site has a lower ground level and rear courtyard;

3. has an access handle that provides access to the rear courtyard from Little Burton Street, which is a shared zone;

4. is a local heritage item listed as ‘Cottage Including Interior’ in the SLEP, noting that:

1. prior to SLEP 2012, the cottage was listed under South Sydney LEP 1998 as ‘Single storey sandstone Victorian Georgian style cottage, c 1840’;

2. the statement of significance from the heritage states:

“32 Burton Street has local historic and aesthetic significance. It is a representative example of a mid- Victorian sandstone cottage and although there have been some detracting alterations such as the front awning these works are largely reversible. The building dates from one of the key period of layers for the development of Darlinghurst as a direct result of subdivision of the Riley Estate”;

5. is located within the East Sydney Heritage Conservation Area (C13); and

6. is identified under the Sydney Development Control Plan 2012 (SDCP) as a contributory building within the heritage conservation area.

4. The Proposed Development was placed on public exhibition by the Respondent between 6 and 28 August 2021, consistent with the provisions of the Council of the City of Sydney Community Participation Plan 2019, and four submissions were received in response to that notification.

5. On 26 August 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). No site inspection was undertaken prior to the conciliation conference being convened, and no objectors sought to make submissions during the conciliation conference.

7. At the conciliation conference, undertaken via Microsoft Teams, the Parties reached an 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 and granting consent to the Applicant’s development application, subject to conditions.

8. Under s 34(3) of the Land and Environment Court Act 1979 (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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. on 1 March 2022, the provisions of the former and now repealed State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were repealed and transferred to Ch 4 of SEPP R&H;

2. section 4.6(1) of SEPP R&H provides that a consent authority must not consent to the carrying out of any development on land unless:

“(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose”

3. the Parties have confirmed, and I am satisfied, that, as stated within the Applicant’s Statement of Environmental Effects prepared by and dated July 2022:

1. no excavation is proposed by the Applicant within its development application; and

2. based on its development history, the Subject Site is unlikely to be contaminated and is considered suitable for its intended continuing use for commercial premises having regard to the provisions of the former cl 7(1) of SEPP 55, and cl 4.6 of SEPP R&H;

2. in relation to the provisions of SLEP:

1. the Subject Site is situated within Zone B4 Mixed Use pursuant to the provisions of cl 2.3 of SLEP, and development for the purposes of a commercial premises is permissible with consent in Zone B4 Mixed Use;

2. clause 2.3 concerning zone objectives and land use table, in relation to which:

1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

2. the Subject Site is zoned B4 Mixed Use, the objectives of which are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail, and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres...

3. the Parties have confirmed, and I am satisfied, that the Development Application (as amended) achieves the objectives of the B4 zone;

4. the Subject Site is subject to a maximum building height development standard of 9m pursuant to clause 4.3 of SLEP, and the Proposed Development (as amended) proposes a maximum height of 8.8m which is compliant with this standard;

5. the Subject Site is subject to a floor space ratio (FSR) development standard control of 1.5:1 pursuant to cl 4.4 of SLEP, and the Proposed Development (as amended) proposes a FSR of 1.1:1 which is compliant with this standard;

6. the Subject Site is identified as an item of local heritage significance (I228) and is located within the East Sydney Heritage Conservation Area, and in relation to this:

1. the Applicant’s Heritage Impact Statement prepared by John Oultram and dated July 2022 recommends that the proposed roof and front doors be replaced with more sympathetic details, and:

2. these recommendations have been incorporated into the Applicant’s Amended Architectural Plans identified in the Parties’ agreed conditions of consent; and

3. the Parties submit, and I am satisfied, that the provisions of cl 5.10 of SLEP are satisfied;

7. the Applicant’s SEE demonstrates that:

1. the Proposed Development (as amended) exhibits design excellence, and provides a high standard of design, detailing and materials; and

2. the Parties agree, and I am satisfied, that the Proposed Development (as amended) complies with the provisions of cl 6.21C of SLEP in relation to design excellence;

8. the Subject Site is not identified as flood prone and therefore the provisions of cl 5.21 of SLEP have no application in relation to the Proposed Development (as amended);

9. the Subject Site is identified as being Class 5 Land within the Acid Sulfate Soils Map (Sheet ASS_0015 under the provisions of cl 7.14 of SLEP, and:

1. as there are no works proposed within 500m of adjacent Class 1-4 land below 5m ADH, the water table is not likely to be lowered below 1m ADH; and

2. an acid sulfate management plan is not required; and

3. the provisions of cl 7.14 of SLEP are satisfied;

10. the Proposed Development (as amended) does not propose a new building or increase the gross floor area of an existing building and accordingly, the requirement for a site specific development control plan under the provisions of cl 7.20 of SLEP is not triggered;

3. in relation to the provisions of SDCP, the Parties have advised, and I am satisfied that the Proposed Development (as amended) has satisfied the following relevant provisions of SDCP:

1. Section 2: Locality Statements;

2. Section 3: General Provisions;

4. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submissions of the four objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act.

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

11. Further, 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.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

14. The Court notes that:

1. that the Applicant has amended its Development Application No D/2021/819 with the agreement of the Council of the City of Sydney as the relevant consent authority (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000) to incorporate the following amended plans and documents:

1. Amended Architectural Plans, prepared by Anthony Gill Architects dated 30 June 2022;

2. Mechanical Exhaust System Plans, prepared by JC Ventilation dated 27 June 2022;

3. Plan of Management, prepared by Mersonn, dated April 2022;

4. Odour Assessment Report, prepared by The Odour Unit dated 18 April 2022;

5. Amended Acoustic Report, prepared by RWDI dated 21 March 2022;

6. Amended Arborist Report, prepared by the Arborist Network dated 18 March 2022;

7. Updated BCA Design Assessment Report, prepared by Design Confidence dated 18 March 2022; and

8. Building plan assessment application approval, prepared by Sydney Water dated 8 March 2022;

9. Updated Site Survey, prepared by ESA Survey dated 10 March 2022.

2. the Applicant’s Amended Development Application has been lodged on the NSW planning portal on 25 July 2022;

3. the Applicant has subsequently filed its Amended Development Application with the Court on 16 August 2022; and

4. the Parties agree that the Applicant’s amendments to its Development Application are not minor.

Orders

15. The Court orders that:

1. the Applicant is to pay the Respondent’s costs pursuant to s8.15(3) of the Environmental Planning and Assessment Act, 1979 in the sum of $10,000.00 within 28 days from the date of these orders;

2. the Appeal is upheld;

3. Development Application No D/2021/819 for the alterations and additions to a commercial development and the use of the site as a bakery and restaurant on land at 32 Burton Street Darlinghurst is approved subject to the conditions in Annexure ‘A’

…………………………..

M Chilcott

Commissioner of the Court

**********

Annexure A 

Decision last updated: 09 September 2022