Pearce and Co Constructions Pty Ltd v The Council of the City of Sydney

[2020] NSWLEC 1638

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pearce & Co Constructions Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1638

Hearing dates:

Conciliation conference on 21 October 2020, 30 October 2020 and 2 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A” to this agreement.

(2) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments at order 1 and pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application No. D/2020/51 for the demolition of existing structures, retention of existing facades, excavation, and construction of a mixed use development with basement parking, ancillary landscaping, drainage and associated works in relation to 172 Redfern Street Redfern (Lot 2 DP 550825) and 73-75 Wells Street Redfern (Lot 1 DP 550825 and Lot 5 DP 65267) is approved, subject to the conditions set out in Annexure “A” of this agreement.

Catchwords:

DEVELOPMENT APPLICATION– residential flat building – Redfern Heritage Conservation area – mixed use development – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Sydney Local Environmental Plan 2012

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 Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Pearce & Co Constructions Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
C Shaw (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2020/189819

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the City of Sydney (the Respondent) of development application no. D/2020/51 seeking consent for the partial demolition of existing buildings, and the construction of a mixed use development with basement parking, ground floor retail space and 13 residential flats at 172 Redfern Street, and 73-75 Wells Street, Redfern (the site).

2. 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 21 October 2020. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. The agreement required the amendment of drawings and other documents, for which purpose I granted an adjournment on two occasions. A signed agreement prepared in accordance with s 34(10) of the LEC Act was executed by the parties on 2 December 2020 and filed with the Court on 9 December 2020.

5. 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.

6. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [9], and as follows:

1. The site is located within the B2 Local Centre zone in accordance with the Sydney Local Environmental Plan 2012 (SLEP) in which mixed use development is a use that is neither permitted without consent or prohibited.

2. The objectives of the B2 Local Centre zone are in the following terms:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To allow appropriate residential uses so as to support the vitality of local centres.

3. The proposed development complies with the height of buildings standard at cl 4.3 of the SLEP, and the floor space ratio applicable to the site in accordance with cl 4.4 of the SLEP.

4. As the site is located within the Redfern Estate Heritage Conservation Area (Redfern HCA), the provisions of cl 5.10 of the SLEP apply. The Heritage Impact Statement, prepared by Urbis dated 17 December 2019 concludes that the proposed redevelopment of the site has been designed with respect to the significance of the contributory items and to allow for their ongoing contribution to the significance of the Redfern HCA.

5. On the basis of the above, and the proposed conditions of consent, I am satisfied that the proposed development does not detract from the Redfern HCA as required by cl 5.10(4) of the SLEP.

6. On the basis of the amended plans, and the agreement of the parties, I accept that the proposed development exhibits design excellence in accordance with cl 6.21 of the SLEP.

7. Adopting the car parking rates set out in cl 7.5 of the SLEP, the proposed development does not exceed the maximum number of car parking spaces on site. Furthermore, all car spaces are for the exclusive use of residents and so complies with the maximum car parking spaces for retail use in cl 7.7 of the SLEP.

8. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. I am satisfied, on the basis of the following, that the land will be remediated:

• detailed site investigation undertaken by Benviron Group revised on 9 September 2020;

• a remediation action plan prepared by Benviron Group and revised on 9 September 2020;

• a letter of interim advice dated 22 September 2020 prepared by NSW accredited site auditor, Lange Jorstad, Geosyntec Consultants, which confirms that the site can be made suitable for its intended purpose.

• Relevant conditions of consent at Conditions 72-83.

9. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) requires that the application must be accompanied by a statement by a qualified designer, defined at s 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 cll 28(2)(b) and (c). I rely on the statement provided by the architect, Paul Buljevic, in relation to the provisions of the EPA Regulations, and to satisfy cl 28(2)(b) of SEPP 65.

10. Finally, I am satisfied that the application is accompanied by a BASIX certificate, prepared by Brian Teplicanec Consultancy in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulations.

7. 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.

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

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A” to this agreement.

2. The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments at order 1 and pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. D/2020/51 for the demolition of existing structures, retention of existing facades, excavation, and construction of a mixed use development with basement parking, ancillary landscaping, drainage and associated works in relation to 172 Redfern Street Redfern (Lot 2 DP 550825) and 73-75 Wells Street Redfern (Lot 1 DP 550825 and Lot 5 DP 65267) is approved, subject to the conditions set out in Annexure “A” of this agreement.

……………………

T Horton

Commissioner of the Court

Annexure A (399487, pdf)

Plans (11296454, pdf)

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Decision last updated: 14 December 2020