Season Group Pty Ltd v Council of the City of Sydney

[2021] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:

Season Group Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1181

Hearing dates:

Conciliation conference on 18 February 2021

Date of orders:

16 April 2021

Decision date:

16 April 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The application is upheld.

(2) Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 the development consent D/2018/1314 granted by the Court on 29 November 2019 in proceeding 2019/21763 (as modified), for alterations and additions to an approved mixed use development (D/2015/421), at 22-38 Yurong Street, Darlinghurst, is modified in accordance with the conditions of consent set out in Annexure “A”.

Catchwords:

DEVELOPMENT – modification application to modify development consent granted by the Court – air conditioning on roof – 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

Texts Cited:

Sydney Development Control 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):

2020/287416

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 - Modification application pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act) being Modification Application number D/2018/1314/C to modify a development consent D/2018/1314 granted by the Court on 29 November 2019 in proceeding 2019/21763 (as modified) (the Court Consent) for alterations and additions to an approved mixed use development (D/2015/421), seeking consent to modify development consent by making a minor modification to the distribution of air conditioning units (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. I have 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 granting development consent to modify development consent granted by the Court on 29 November 2019 subject to conditions. I note that the Development Application was amended following the grant of leave to rely on amended plans on 10 February 2021 and the plans listed in the conditions of consent include the amended plans.

4. 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 4.55(8) of the EPA Act to modify a consent granted by it.

5. 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 4.55 of the EPA Act.

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

7. Firstly, the Modification Application is of minimal environmental impact and the parties rely on the content in pp 14 and 15 of the Section 4.55(8) Planning Statement prepared by Sutherland & Associates Planning dated September 2020 (the Planning Statement). I have read this document and adopt the reasons listed in the Planning Statement as follows:

1. The approved development already has AC units approved and the Modification Application does not introduce any new elements but rather simply redistributes some AC units from the lower rooftop area to the primary rooftop area.

2. The Modification Application does not result in any change to any other of the approved configuration of the building.

3. The nature of the Modification Application does not generate any issues which require any further analysis and can only be described as of minor environmental impact.

8. For these reasons I am also satisfied that the Modification Application is substantially the same development. I note that the purpose of the reconfiguration is to resolve a technical problem with the approved air conditioning configuration.

9. Secondly, the parties identify that the Modification Application utilises high quality materials and satisfies the provisions of cl 6.21 of the Sydney Local Environmental Plan 2012 regarding Design Excellence.

10. Finally, the Modification Application was notified in accordance with Sydney Development Control Plan 2012 and no submissions were received.

11. 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 application is upheld.

2. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 the development consent D/2018/1314 granted by the Court on 29 November 2019 in proceeding 2019/21763 (as modified), for alterations and additions to an approved mixed use development (D/2015/421), at 22-38 Yurong Street, Darlinghurst, is modified in accordance with the conditions of consent set out in Annexure “A”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (265696, pdf)

Plans (3136896, pdf)

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Decision last updated: 16 April 2021