Season Group Pty Ltd v Council of the City of Sydney

[2021] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:

Season Group Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1180

Hearing dates:

Conciliation conference on 18 and 19 February 2021 and 3 March 2021

Date of orders:

16 April 2021

Decision date:

16 April 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

Refer to orders below at [13]

Catchwords:

DEVELOPMENT APPEAL – modification application – flood barrier – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Season Group Pty Ltd (Applicant)
Council of the City of Sydney(Respondent)

Representation:

Counsel:
C McEwen SC (Applicant)
P Canning (Solicitor) (Respondent)

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

File Number(s):

2020/287407

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the actual refusal of an application number D/2015/421/D to modify a development consent number D/2015/421 seeking to make a minor modification to the configuration of the basement level with the replacement of a flood barrier roller door with a second ram push flood and associated blade walls and relocated motorcycle parking spaces (the Modification Application) at 22-38 Yurong Street Darlinghurst (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 has been held on 18 February 2021 and 19 February 2021 and 3 March 2021. I have presided over the conciliation conference.

3. During the conciliation conference, the Applicant sought leave to rely on further amended plans prepared following the consideration of a set of amended plans in the Flooding and Structural Engineers Joint Expert Report filed with the Court on 16 February 2021 and in the Town Planning, Heritage and Structural Joint Expert Report filed with the Court on 16 February 2021.

4. 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 upholding the appeal and granting development consent to the development application subject to conditions.

5. 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 4.56 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.56 of the EPA Act.

7. The parties explained how the jurisdictional prerequisites have been satisfied.

8. Firstly, a ‘Section 4.56 Planning Statement’ has been prepared by Sutherland & Associates Planning dated July 2020 (the Planning Statement). I have read this document and I am satisfied that the Modification Application is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. I accept and adopt the reasons set out in section 5.2 of the Planning Statement (on page 11) as follows:

1. I note the reason for the Modification Application provided on page 9 is that “since the approval it has become apparent that flood roller doors are unsuited to frequent opening and closing cycles due to the excessive maintenance and component replacement that such usage would create, and that these type of doors are only used for flood protection where they are permanently raised and on standby in the open position, and not for access or security purposes.”

2. There are no external modifications to the approved development.

3. The proposed internal amendment is particularly minor and does not generate any meaningful change to the environmental impacts associated with the approved development and there no further issues for assessment.

4. The proposed amendment is fundamentally a housekeeping modification necessary to achieve an appropriate flood protection solution.

5. The proposed amendments do not change any fundamental and substantive characteristics of the development.

9. Secondly, in accordance with s 4.56(1A) of the EPA Act the Planning Statement also considered the matters referred to in s 4.15(1) of the EPA Act of relevance to the development the subject of the application and I am satisfied that Heritage and Flood Planning are relevant planning controls set out in the Sydney Local Environmental Plan 2012 (the SLEP).

1. I have considered that the Site is identified as a contributory building in the East Sydney Heritage Conservation Area and that the proposed amendment is contained internally within the building and therefore does not result in any impact in relation to the contribution of the approved development to the conservation area.

2. In relation to Flood Planning, I have noted the comments in the Planning Statement in relation to cl 7.15 of the SLEP which provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development satisfies the matters listed in the clause and note that this in included in the Amended Statement of Facts and Contentions filed 11 February 2021 in Contention 2. I have considered the Joint Expert Reports referred to in this judgment and following consideration by the parties Flood engineers they agree that this contention is resolved provided the Modification Application is updated to include the amended plans and the conditions of consent they nominate are included in the conditions of consent. I am satisfied that consent conditions at Annexure A to this judgment address the matters recommended by the expert flood engineers and I am accordingly satisfied that the cl 7.15 of the SLEP are complied with and that there is no jurisdictional impediment to approving the Modification Application in regards to Flood Planning.

10. Lastly, in accordance with s 4.56(1) of the EPA Act the Respondent notified each person who made a submission in respect of D/2015/421 of the proposed modification by sending written notice to their last known address on 19 February 2021 seeking submissions by 1 March 2021 and I note that no submissions were received.

11. For the reasons given above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

12. 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.

13. The Court orders:

1. The applicant is granted leave to amend the modification application and rely on the following documents:

1. DA2001, revision L(4) prepared by MHNDU dated 16 February 2021;

2. DA3001 revision H(3) prepared by MHNDU dated 11 February 2021;

3. DA3002 revision I(3) prepared by MHNDU dated 16 February 2021;

4. DA3003 revision I(3) prepared by MHNDU dated 11 February 2021; and

5. DA3004 revision H(3) prepared by MHNDU dated 11 February 2021.

2. The appeal is upheld.

3. Modification application DA/2015/421/D lodged on 14 July 2020 is approved subject to the condition set out in Annexure “A”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (621251, pdf)

Plans (2615266, pdf)

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Decision last updated: 16 April 2021