Riakos v Council of the City of Sydney

[2023] NSWLEC 1361

Land and Environment Court

New South Wales

Medium Neutral Citation:

Riakos v Council of the City of Sydney [2023] NSWLEC 1361

Hearing dates:

Conciliation conference 30 June 2023

Date of orders:

12 July 2023

Decision date:

12 July 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application D/2021/1474, as amended, for the demolition of the existing structures and construction of a new residential dwelling over basement storage and swimming pool including the removal of trees, at 100 Garden Street, Alexandria subject to the conditions of consent annexed hereto and marked Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, cl 37

Land and Environment Court Act 1979 s 34

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

Sydney Local Environmental Plan 2012, cll 2.7, 5.10, 5.21, 6.21C, 7.14, 7.19

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Patrick Riakos (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2023/32770

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2021/1474 (DA) by the Council of the City of Sydney.

2. The DA seeks consent for demolition of existing structures and construction of a new residential dwelling over basement storage and swimming pool including the removal of trees at 100 Garden Street, Alexandria (site).

Agreement reached

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 30 June 2023, and at which I presided. Prior to the conciliation conference the parties had filed an agreement relating to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent for the DA, subject to certain amendments and consent conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Amendments to the development application

6. The Court notes the advice of the parties that the respondent, as the relevant consent authority, has agreed, under cl 37 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the DA to accord with the material in the table below and that the Applicant has subsequently filed the Amended DA with the Court.

TAB	DOCUMENT	DATE
1.	Schedule of Amendments and Amended Architectural Plans (Rev F) prepared by Blu Print Designs	14 June 2023
2.	Amended Landscape Plans prepared by Michael Siu and Associates (REV D)	15 June 2023
3.	Flood Risk Management Assessment prepared by Catchment Simulation Solutions	23 June 2023
4.	Amended Heritage Report prepared by Cracknell & Lonergan Architects	3 April 2023
5.	Updated BASIX certificate	13 June 2023
6.	Design Excellence Statement in response to clause 6.21C of the Sydney Local Environmental Plan 2012	2 June 2023
7.	Stormwater Drainage / Sediment Control Plans prepared by John Romanous & Associates	15 June 2023

Jurisdictional pre-requisites

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. On 28 June 2023, the parties provided an advisory statement entitled “Agreed Jurisdictional Prerequisites” (henceforth: jurisdictional statement) which outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. I have noted this jurisdictional statement in my findings which follow.

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Pursuant to s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I accept the agreed position of the parties that given the site has historically been used for residential purposes, a low risk activity in terms of contamination. A condition of consent has been added in regard to requirements should demolition or excavation uncover unexpected finds. The relevant requirements have been satisfied.

Sydney Local Environmental Plan 2012

9. The proposal is permissible in the subject R1 Residential zone. I have had regard to the zone objectives.

10. I accept the advice of the parties that the development standards under Sydney Local Environmental Plan 2012 (SLEP) have been complied with, notably those relating to maximum building height, floor space ratio and parking limitations.

11. The site is located within the Alexandria Park Heritage Conversation Area (HCA), with the site identified as accommodating a contributory building under Sydney Development Control Plan 2012. Clause 5.10(4) of SLEP requires that before granting consent in respect of a proposal in a HCA, the consent authority must consider the effect of the proposed development on the heritage significance of this HCA. I have reviewed the Statement of Heritage Impact accompanying the Class 1 Application to the Court filed 1 February 2023 (Tab 5) and a supplementary statement included in what the parties refer to as the Section 34 Agreement Bundle provided to the Court on 28 June 2023 (Tab 6). I have duly considered the effect of the proposed development on the heritage significance of Alexandria Park HCA. The requirements of cl 5.10(4) have been met.

12. Clause 5.21 is concerned with flood planning. Clause 5.21(2) lists certain points concerning which a consent authority must be satisfied with in relation to flood planning. Clause 5.21(3) lists a series of points (in relation to flood planning) which a consent authority must consider in coming to a decision whether to grant consent. I note that the Section 34 Agreement Bundle includes a Flood Risk Management Assessment (Tab 5). This assessment directly responds to the provisions of cl 5.21(2) and 5.21(3), finding that a consent authority can be satisfied in regard to the points in cl 5.21(2). It is further found that the points at cl 5.21(3) do not raise significant concerns with respect to any issue of a development consent. The parties advise they are satisfied with the advice in this assessment. So informed, I too find that I am satisfied with respect to the matters at cl 5.21(2) and that I have considered the matters at cl 5.21(3).

13. Under cl 6.21C consent must not be granted to the development unless, in the opinion of the consent authority, it exhibits design excellence. There are a series of itemised matters at cl 6.21C(2) which a consent authority must have regard to in deciding this question. In relation to this, the Section 34 Agreement Bundle includes a statement relating to design excellence in regard to the amended application (Tab 8). This statement works through each of the matters at cl 6.21C(2) drawing the conclusion that the proposal exhibits design excellence having regard to the nominated considerations. The parties advise that they believe the proposal exhibits design excellence in general agreement with this statement but also pointing to a number of specific aspects of the amended proposal including contextual sensitivity in design, response to public domain, treatment of flooding considerations, and quantum of deep soil available for new plantings. My finding is in agreement with the parties. The amended proposal exhibits design excellence.

14. In regard to cl 7.14 and acid sulfate soils, I accept the advice of the parties that site is located on land classified as Class 5 and does not propose works requiring the preparation of an Acid Sulfate Soils Management Plan

15. In regard to cl 7.19, in accordance with the advice of the parties, I am satisfied that:

1. the land affected by the demolition will be comprehensively redeveloped; and

2. the conditions of consent contain adequate measures to assist in mitigating any adverse visual impacts that may arise with regard to streetscape and special character area (conditions 20 and 35).

Other provisions of s 4.15(1) of the EPA Act

16. Sydney Development Control Plan 2012 applies, but jurisdictionally, nothing turns on this policy instrument.

17. The parties advise the proposal was notified in accordance with requirements. Copies of submissions were provided and during the conciliation conference the essential issues raised in submissions were outlined and the design responses explained to me. I have taken into consideration objecting submission in accordance with the requirement of s 4.15(1)(d) of the EPA Act.

18. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of s 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

19. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

20. 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. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

21. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application D/2021/1474, as amended, for the demolition of the existing structures and construction of a new residential dwelling over basement storage and swimming pool including the removal of trees, at 100 Garden Street, Alexandria subject to the conditions of consent annexed hereto and marked Annexure A.

P Walsh

Commissioner of the Court

32770.23 Annexure A

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Decision last updated: 12 July 2023