Racsko v The Council of the City of Sydney

[2025] NSWLEC 1487

Land and Environment Court

New South Wales

Medium Neutral Citation:

Racsko v The Council of the City of Sydney [2025] NSWLEC 1487

Hearing dates:

Conciliation conference held on 4 April, 13 May, 3 June and 16 June 2025

Date of orders:

9 July 2025

Decision date:

09 July 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application D/2024/865 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $5,000.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 (SLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the SLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application D/2024/865 (as amended) for demolition of the existing dwelling and construction of a new three-storey dwelling house with detached garage and associated landscaping at 44 Leinster Street, Paddington, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

Sydney Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.6, 5.10, 5.21, 6.21C, 7.13, 7.14, 7.19

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category:

Principal judgment

Parties:

Alexandra Sidonia Racsko (First Applicant)
Tone Wheeler (Second Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
A Stipcevic (Solicitor) (Respondent)

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

File Number(s):

2024/442503

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Alexandra Sidonia Racsko and Tone Wheeler (First and Second Applicant respectively, and together the Applicant), against the deemed refusal of Development Application D/2024/865 (the DA), by The Council of the City of Sydney (the Respondent).

2. At the date of its lodgement on 8 October 2024, the DA sought consent for the demolition of all existing structures, the removal of two trees, and the construction of a new three-storey dwelling house with detached garage and associated landscaping work, at 44 Leinster Street, Paddington (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 April, 13 May, 3 June and 16 June 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent.

6. These contentions included issues of unacceptable heritage impacts arising from the proposed demolition of an identified contributory building, the failure of the DA to exhibit design excellence, unacceptable bulk, scale and form, unacceptable impacts upon neighbouring properties’ amenity, inadequate provision of deep soil, inadequate tree protection and replacement, and inadequate stormwater management, amongst other contentions.

7. Significant design amendments have been made to improve the proposed building’s relationship to the site, its context and the desired future character of this part of Paddington. Additionally, the Applicant has provided supporting structural and heritage advice, which is agreed to adequately justify the proposed demolition of the existing contributory dwelling. The design of the replacement dwelling is now agreed to demonstrate design excellence and creates no unreasonable impacts upon neighbouring properties or existing street trees.

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 amended DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

11. The DA was publicly notified between 10 October and 8 November 2024 in accordance with the Respondent’s community participation plan. Three submissions were received by the Respondent, with two of these raising concerns including:

1. The DA exceeding the relevant number of storeys control.

2. Deficiencies in the Heritage Impact Report.

3. The failure of the proposed building to exhibit design excellence.

4. The lack of justification for the demolition of the existing dwelling, which should be retained.

5. Acoustic privacy and cross viewing resulting from the proposed elevated rear decks.

12. No objectors registered to make submissions to the Court during the site view at the commencement of the conciliation conference.

13. The parties agree, and I am satisfied, that matters raised in these public submissions have been considered, and where relevant, the amended DA and conditions of consent satisfactorily address the matters raised. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

14. The parties agree, and I am satisfied, that the Sydney Local Environmental Plan 2012 (SLEP) is the relevant local environmental planning instrument. The site is zoned R1 General Residential. The amended DA - characterised as a single dwelling house - is permissible with consent within the R1 zone.

15. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the SLEP, the amended DA is consistent with the R1 General Residential zone objectives, which include 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; and to maintain the existing land use pattern of predominantly residential uses.

16. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the SLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.

17. The parties agree, and I am satisfied, that all principal development standards of the SLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.

18. In such an instance, cl 4.6(3) of the SLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

19. Accordingly, the Applicant has provided a written document seeking to vary the height of buildings development standard, prepared by Sutherland and Associates Planning and dated 16 June 2025.

20. Pursuant to cl 4.3 of the SLEP the site is subject to a height of building development standard of 9m.

21. The amended DA proposes a maximum building height of 9.67m, exceeding the relevant height of building development standard by 672mm and representing a variance of approximately 7.5%.

22. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The majority of the proposed building complies with the development standard, particularly toward the rear of the property, while the portion of the building which exceeds 9m is limited to a relatively small area of the upper-most floor generally set towards the front of the site as it presents to the streetscape.

3. The amended DA has been designed to extend an existing row of two-storey terrace houses, introducing an appropriately-scaled street elevation that adopts cues from the neighbouring terraces (which also exceed the 9m development standard).

4. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

5. The objectives of the SLEP R1 General Residential land use zone include 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; and to maintain the existing land use pattern of predominantly residential uses. I am satisfied the amended DA is consistent with these objectives.

6. The relevant objectives of cl 4.3 of the SLEP - Height of buildings - include to ensure the height of development is appropriate to the condition of the site and its context; to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas; and to promote the sharing of views outside Central Sydney. I am satisfied the amended DA meets these objectives.

23. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

24. Pursuant to cl 5.10 of the SLEP - Heritage conservation - the site is not a listed heritage item, however is situated within the Paddington South Heritage Conservation Area (HCA). Further, the existing dwelling on the subject site is identified as a contributory building within the Respondent’s suite of development controls.

25. Relevantly, cl 5.10(4) of the SLEP requires the consent authority (the Court in this instance) to consider the effect of the amended DA on the heritage significance of the HCA.

26. To this end, the parties agree, and I am satisfied, that the existing building may be demolished given that it has been extensively altered over time, which has changed the overall form and appearance of the front elevation. This has reduced its significance such that its contribution is agreed to be limited.

27. Accordingly, the parties agree, and I am satisfied that the amended DA is consistent with cl 5.10 of the SLEP.

28. Pursuant to cl 5.21 of the SLEP - Flood planning - the site is not mapped within a flood planning area.

29. Pursuant to cl 6.21C of the SLEP - Design excellence - the consent authority (the Court in this instance) must form an opinion that the amended DA exhibits design excellence in terms set out at cl 6.21C(a)-(d).

30. The parties agree, and I am satisfied, that the amended DA adequately demonstrates design excellence for the following reasons:

1. The proposed building form is of an appropriate bulk, scale and mass, consistent with the local context and the Respondent’s relevant density controls.

2. The building presents as a traditional two-storey terrace house, consistent with the immediate neighbours to the east of the site.

3. The architectural expression, detailing, materials and character of the proposed dwelling responds positively to the character of the immediate streetscape and will not result in adverse impacts upon the heritage significance of the Paddington South HCA.

4. The amended DA meets the Respondent’s relevant controls for the protection of amenity including maintaining visual and acoustic privacy, and solar access and overshadowing.

5. The landscape design results in an adequate provision of deep soil private open space, street tree management and streetscape presentation.

31. The parties agree, and I am satisfied, that pursuant to cl 7.13 of the SLEP - Contribution for purpose of affordable housing - the amended DA proposes less than 200 sqm of gross floor area and is therefore exempt from the operation of cl 7.13.

32. The parties agree, and I am satisfied, that pursuant to cl 7.14 of the SLEP - Acid sulfate soils - the site is mapped within a Class 5 acid sulfate soils area. However, the amended DA involves works that are not likely to lower the water table below 1m AHD on any class of land within 500m of the site, and accordingly cl 7.14 is appropriately addressed.

33. The parties agree, and I am satisfied, that pursuant to cl 7.19 of the SLEP - Demolition must not result in long term adverse visual impact - the amended DA includes demolition and the construction of a replacement dwelling, which represents comprehensive redevelopment. Additionally, agreed conditions of consent address visual impacts of the development on the streetscape and the HCA.

34. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

35. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

36. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA seeks consent for the removal of vegetation and proposes appropriate replacement trees. I am satisfied that a permit or approval to clear vegetation is not required under Ch 2 of SEPP BC if it is clearing of a kind that is granted consent within the amended DA.

37. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings, and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1796672S dated 22 May 2025, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

38. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been appropriately taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

39. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

40. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 23 June 2025.

Orders

41. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application D/2024/865 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $5,000.

3. The Applicant’s written request, pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 (SLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the SLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application D/2024/865 (as amended) for demolition of the existing dwelling and construction of a new three-storey dwelling house with detached garage and associated landscaping at 44 Leinster Street, Paddington, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

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Decision last updated: 09 July 2025