Noceanview Pty Ltd v City of Sydney Council

[2020] NSWLEC 1129

Land and Environment Court

New South Wales

Medium Neutral Citation:	Noceanview Pty Ltd v City of Sydney Council [2020] NSWLEC 1129
Hearing dates:	Conciliation conference on 12 March 2020
Date of orders:	18 March 2020
Decision date:	18 March 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development application no. D/2018/525 for alterations and additions to the existing commercial building including the addition of a partial fourth floor with roof terraces, external alterations to the façade, internal alterations and change of use of the ground floor from office to retail at 137-153 Crown Street, Darlinghurst is approved subject to the conditions contained at Annexure ‘A’.
Catchwords:	DEVELOPMENT APPEAL – existing use rights – existing commercial use – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court 1979 State Environmental Planning Policy No 55 – Remediation of Land Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Noceanview Pty Ltd (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: P Larkin (Applicant) R Bullmore (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) City of Sydney Council (Respondent)
File Number(s):	2018/315463
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) relating to the deemed refusal of Development Application No. 2018/315463 seeking consent for alterations and additions to an existing commercial premises located at 137-153 Crown Street, Darlinghurst, including the erection of an additional fourth storey to the building and also change of use to the ground floor of the premises from business to retail.

2. Leave was granted on 28 January 2020 for the Applicant to amend the development application and rely upon amended plans and reports, which included among other amendments, modification to the roof form, relocation of the roof terraces and changes to cladding and materials.

3. The matter was initially listed before me for hearing on 12-13 March 2020. However, prior to the commencement of the proceedings, and on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 12 March 2020. I 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 and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 12 March 2020.

5. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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. There are jurisdictional prerequisites contained in the relevant provisions of the following:

• Environmental Planning and Assessment Regulations 2000 (EPA Regulations)

• State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

• Sydney Local Environmental Plan 2012 (SLEP)

8. The parties explained to me during the conference as to how the jurisdictional requirements have been satisfied in order to allow the Court to make orders that give effect to the parties’ agreement. I am satisfied that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. I note that the proposed development is within the R1 General Residential zone in which commercial premises is prohibited. The objectives of the zone are as follows:

• 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.

2. The parties are agreed, and I concur, that the site enjoys existing use rights under Division 4.11 of the EPA Act and I am satisfied that pursuant to s 4.67(3) of the EPA Act, the prohibition on the use of the site for a commercial use, contained in the SLEP does not derogate those existing use rights. Furthermore, I am satisfied that retail premises and office premises are defined in the dictionary of the SLEP as a form of commercial premises and so the proposed development is consistent with the provisions of cl 41(1)(e) of the EPA Regulations.

3. I have considered whether the land is contaminated, pursuant to cl 7(1) of SEPP 55, and I accept that as there is no excavation proposed, no remediation is required in order for the land to be made suitable for the purpose for which the development is proposed to be carried out.

4. Clause 4.3 of the SLEP provides that a maximum building height applies to the site of 15m. I note that the existing building, which enjoys existing use rights, has a maximum height of 17.6m. The proposed development has a maximum height of 17.4m, being lower that the maximum height of the existing building.

5. The site is within the East Sydney Heritage Conservation Area (C13)(HCA), and so the provisions of cl 5.10(4) apply to the site. On the basis of the Heritage Impact Statement prepared by Urbis dated 19 December 2019, I am satisfied that the proposed development will not adversely affect the heritage significance of the HCA. In particular I note that the existing building is identified as having a detracting effect on the HCA, and that the works propose the removal of intrusive elements.

9. Having formed an opinion 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 Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. 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.

11. The Court orders that:

1. The appeal is upheld.

2. Development application no. D/2018/525 for alterations and additions to the existing commercial building including the addition of a partial fourth floor with roof terraces, external alterations to the façade, internal alterations and change of use of the ground floor from office to retail at 137-153 Crown Street, Darlinghurst is approved subject to the conditions contained at Annexure ‘A’.

………………….

Tim Horton

Commissioner of the Court

Annexure A (167 KB, pdf)

Plans (3.46 MB, pdf)

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Decision last updated: 20 March 2020