Parison v City of Sydney Council

[2021] NSWLEC 1054

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parison v City of Sydney Council [2021] NSWLEC 1054

Hearing dates:

Conciliation conference on 28 January 2021

Date of orders:

03 February 2021

Decision date:

03 February 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1)  Leave is granted to the Applicant to amend the development application and rely on the plans and documents listed under Condition 1(a) of Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away in the amount of $1,500 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, within twenty-eight (28) days.

(3) The appeal is upheld.

(4) Development consent is granted to development application number D/2019/832 for partial demolition and alterations and additions to two existing semi-detached residential dwellings and construction of a three storey mixed use development comprising two ground floor home offices and three apartments at 45-47 Crown Street, Woolloomooloo, in accordance with the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to two existing semi-detached dwellings and new infill building – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Sydney Local Environmental Plan 2012

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Maria Parison (Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
City of Sydney Council (Respondent)

File Number(s):

2019/395639

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ms Maria Parison (the Applicant) against the Respondent’s actual refusal of development application DA2019/832. The development application seeks consent for partial demolition and alterations and additions to two existing semi-detached residential dwellings and construction of a new three storey mixed use development comprising two ground floor home offices and three apartments at 45-47 Crown Street, Woolloomooloo (Lot 3 and Lot 4 in Deposited Plan 108229).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The appeal was listed for conciliation on 28 January 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). Prior to 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 on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 January 2021.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), consent has been provided by the owners of the land the subject of the Development Application.

2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the site. Clause 7(1) of SEPP 55 requires the Consent Authority to consider whether the site is contaminated. The Respondent notes that its records indicate that the subject land has been used for residential purposes for a significant period of time with no prior land uses. I accept the agreed submission of the parties that the site poses a negligible risk of contamination and that the land is suitable for the proposed use.

3. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. As the proposed development is, in part, residential apartments, State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies. It requires the consent authority to take into consideration firstly: the design quality of the development when evaluated in accordance with the design quality principles (at sub cl 28(2)(b)), and secondly the provisions of the Apartment Design Guide (ADG) (at sub cl 28(2)(c)). Further, consent must not be granted unless the consent authority, or the Court on appeal, is of the opinion that the proposed development demonstrates adequate regard has been given to the design quality principles at Schedule 1 of the SEPP 65, and to the objectives specified in the ADG. In determining the development application, I have had regard to these matters and have formed the opinion that the proposed development demonstrates that it has had adequate regard to the design quality principles.

5. Further, s 50(1AB) of the EP&A Regulation requires that a qualified designer, must provide the consent authority, with a statement that they designed, or directed the design of the development. Such a statement has been provided by Christopher Jordan Reg No. 8057.

6. Pursuant to Sydney Local Environmental Plan 2012 (LEP 2012) the site is zoned B4 Mixed Use. The proposed development is permissible in the zone. In determining the development application, I have had regard to the objectives of the zone.

7. The subject site is located within the Woolloomooloo heritage conservation area (C71). A heritage listed sandstone wall (ref: I2129A) and two contributory terraces are contained within the site. In determining the development application, I have considered the effect of the proposed development on the heritage significance of these items and the conservation area. I am satisfied that the development will not have a detrimental impact on the significance of the item or area sufficient to warrant refusal of the application.

8. Clause 6.21 of LEP 2012: Design Excellence applies to the development application. In determining the development application, I have had regard to the matters listed at cl 6.21(4) and I am satisfied that the development exhibits design excellence.

9. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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 to dispose of the proceedings in accordance with the parties’ decision.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. Leave is granted to the Applicant to amend the development application and rely on the plans and documents listed under Condition 1(a) of Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away in the amount of $1,500 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, within twenty-eight (28) days.

3. The appeal is upheld.

4. Development consent is granted to development application number D/2019/832 for partial demolition and alterations and additions to two existing semi-detached residential dwellings and construction of a three storey mixed use development comprising two ground floor home offices and three apartments at 45-47 Crown Street, Woolloomooloo, in accordance with the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (250744, pdf)

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Decision last updated: 03 February 2021