PCorp Developments Pty Ltd ATF PCorp Investment Trust v the Council of the City of Sydney

[2019] NSWLEC 1635

Land and Environment Court

New South Wales

Medium Neutral Citation:	PCorp Developments Pty Ltd ATF PCorp Investment Trust v the Council of the City of Sydney [2019] NSWLEC 1635
Hearing dates:	Conciliation conference on 12 December 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans, copies of which are marked Annexure A for the purposes of the development application. (2) The Applicant is to pay the Respondent’s costs of $6,000 that were thrown away as a result of the amendment of the application for development consent under s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders. (3)   The appeal is upheld. (4)   Development application D/2017/1426 for the demolition of existing building and construction of three storey residential flat building comprising five units at 27 Church Street, Camperdown is approved subject to the conditions in Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – SEPP 65 Design quality of residential apartment development – conciliation conference – agreement between the parties – orders
Legislation Cited:	Architects Act 2003 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 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:	PCorp Developments Pty Ltd ATF PCorp Investment Trust (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: J Cole (Solicitor) (Applicant) M Flick (Solicitor) (Respondent)   Solicitors: HWL Ebsworth Lawyers (Applicant) Sydney City Council (Respondent)
File Number(s):	2018/295462
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Council of the City of Sydney (the Respondent) of Development Application DA D/2017/1426 for the demolition of the existing building and construction of a three storey plus ‘attic’ level (four storeys) residential flat building comprising five units with terraces as 27 Church Street, Camperdown.

2. The site is legally described as Lot C in DP 33584, with a frontage of 5.71m to Church Street and a total site area of 203.1m2.

3. 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 3 May 2019. The proceedings commenced onsite, at which a number of resident submissions were heard, and after which the parties continued conciliation discussions. I presided over the conciliation conference. While some contentions were resolved, the parties did not reach in-principle agreement on all of the matters in contention, and I terminated the conciliation conference.

4. The matter was then listed by the Registrar for hearing, and the parties consented to me as the presiding Commissioner.

5. On 2 July 2019, the Applicant was granted leave to amend the application and rely upon amended plans which further resolved contentions.

6. On 4 December 2019, on the basis of further amended plans, parties sought leave of the Court for the matter to be listed as a conciliation conference at which I presided, and at which a signed agreement prepared in accordance with s 34(10) of the LEC Act was filed. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

8. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. However, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and the Sydney Local Environmental Plan 2012 (SLEP).

10. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the following reasons:

1. The site is within the B4 Mixed Use zone in which the proposed use is permitted with consent as a residential flat building (not being specified in item 2 or 4 of the Land Use Table), and in which the objectives are in the following terms:

• 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.

2. The proposed development, as further amended, complies with the permissible floor space ratio and height of buildings development standards as set out in the SLEP.

3. I am satisfied that the proposal is of a height, bulk and scale that is compatible with the surrounding built form, has a reduced impact in overshadowing, and demonstrates appropriate cross ventilation and solar access to reduce reliance on air conditioning and artificial lighting to achieve the requirements of cl 6.21 of the SLEP.

4. In relation to cl 7 of the SEPP 55, I am satisfied that the site can be made suitable for the proposed development, on the basis of the interim site audit advice prepared by Easterly Point Environmental dated 29 October 2019, the Remediation Action Plan prepared by Benviron Group dated October 2019, and subject to those actions contained in the conditions of consent being completed.

5. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of the SEPP 65. I rely on the statement completed by the architect Albert Becerra dated November 2019 to this effect.

6. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

11. 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.

12. 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.

13. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans, copies of which are marked Annexure A for the purposes of the development application.

2. The Applicant is to pay the Respondent’s costs of $6,000 that were thrown away as a result of the amendment of the application for development consent under s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders.

3. The appeal is upheld.

4. Development application D/2017/1426 for the demolition of existing building and construction of three storey residential flat building comprising five units at 27 Church Street, Camperdown is approved subject to the conditions in Annexure B.

………………………………

T Horton

Commissioner of the Court

Annexure A Pages 1-4 (771 KB)

Annexure A Pages 6-9 (1.14 MB)

Annexure B (444 KB)

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Decision last updated: 23 December 2019