Simons v City of Sydney Council

Case •

[2025] NSWLEC 1480

•

08 July 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Simons v City of Sydney Council [2025] NSWLEC 1480
Hearing dates: Conciliation conference 20 March, 8 May and 27 June 2025
Date of orders: 08 July 2025
Decision date: 08 July 2025
Jurisdiction:Class 1
Before: Dickson C
Decision:

The Court orders that:

(1)   The Applicants are granted leave to file the Amended Development Application.

(2) The Applicants are to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of ($2,300) within 28 days of these orders.

(3)   The appeal is upheld.

(4)   Development Application No. D/2024/182, as amended for the restoration and repair of three storey heritage terrace and alterations and additions to the rear wing to an existing property on land legally described as Lot 12 Deposited Plan 34189 and known as 441 Riley Street, Surry Hills NSW 2010 is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to an existing terrace house — amended plans — conciliation — agreement between the parties — orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

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

Sydney Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 5.10, 6.21C, 7.3, 7.4, 7.14, Sch 5

Cases Cited:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:

Sydney Development Control Plan 2012

Category:Principal judgment
Parties: Gregory Simons (First Applicant)
Katherine Simons (Second Applicant)
City of Sydney Council (Respondent)
Representation:

Counsel:
C Zhang (Solicitor) (Applicants)
G Garrett (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicants)
Council of the City of Sydney (Respondent)
File Number(s): 2024/330915
Publication restriction: No

JUDGMENT

  1. COMMISSIONER: This is a Class 1 appeal brought by the Applicants, Gregory and Katherine Simons under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the terms of the determination of their development application D/2024/182. The development application seeks consent for the restoration and repair of three storey heritage terrace and alterations and additions to the rear wing to an existing property on land legally described as Lot 12 Deposited Plan 34189 and known as 441 Riley Street, Surry Hills NSW 2010.

  2. The appeal centres on the terms of the consent issued by the Respondent, in particular conditions 2, 3, 4, 5 and 6 of the consent which had the effect of modifying the development pursuant to s 4.17(1)(g) of the EPA Act.

  3. 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 20 March 2024. Following the conciliation conference the Applicant made amendments to their development application responsive to the Respondent’s contentions.

  4. A further conciliation conference was requested by the parties and was listed by the Court on 27 June 2025. I presided over the further conciliation conference. At the further conciliation conference agreement was reached between the parties. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application.

  5. Since the commencement of the proceedings the development application has been amended. The amendments can be broadly described as:

  1. A reduction in the proposed excavation and provision of additional deep soil within the site.

  2. Preparation of a piling and construction methodology for the works addressing concerns in relation to amenity and retained heritage fabric.

  3. A reduction in the extent of proposed works on the ground floor level, concordant with the provision of additional landscaping.

  4. Redesign and lowering of the proposed outdoor BBQ area.

  5. Reduction of the proposed extension to the west of the second floor.

  6. Addition of dormer windows to the attic level in a manner consistent with Sydney Development Control Plan 2012 (DCP 2012).

  1. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

  1. The development application was made by Cracknell & Lonergan Architects Pty Ltd on 14 March 2024 with the consent of the owners of the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

  2. The Applicants, as principals, have standing to commence these proceedings under s 8.7(1) of the EPA Act: Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223 at [43].

  3. The development application was notified by the Respondent between 6 May and 21 May 2025. Two submissions were received in objection to the development application.

  4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The subject site has not been identified as being contaminated. The conditions of consent address any finds during construction and the management of asbestos. The parties agree, and I accept, that s 4.6 of SEPP RH is satisfied.

  5. Part 6.2 ‘Development in regulated catchments’ of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located with the Sydney Harbour Catchment. The parties are satisfied, and I accept with the assistance of the architectural plans and the statement of environmental effects, that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment.

  6. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The development application is accompanied by a Geotechnical Investigation which concludes that no groundwater seepage was observed and there will be no impact on the ground water table from the development. I find that none of the listed matters warrant the refusal of the development application.

  7. Pursuant to s 6.7(2) of SEPP BC, the parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water.

  8. The amended development application is accompanied by a BASIX certificate, complying with the requirements of State Environment Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) and s 27 of the EPA Regulation. Further, the BASIX certificate quantifies the embodied emissions attributable to the development, satisfying s 2.1(5) of SEPP Sustainable Buildings.

  9. The Sydney Local Environmental Plan 2012 (LEP 2012) is the applicable environmental planning instrument to the site. The land is zoned R1 General Residential. The proposed development is ancillary to the use of the land as a dwelling house, a use that is permitted with consent. I have given consideration to the objectives of the zone which are:

•  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.

•  To maintain the existing land use pattern of predominantly residential uses.

  1. Demolition works are permitted with consent pursuant to cl 2.7 of LEP 2012.

  2. Pursuant to cl 4.3 'Height of Buildings' of LEP 2012 the site is mapped with a maximum height of 12m. The proposed development seeks a maximum building height of up to 13.6m. I note that the height of the existing terrace exceeds this maximum height standard. The Applicant relies on a written request under cl 4.6 of LEP 2012 to vary the development standard by 1.31m. The nature of the works within the proposed height exceedance is the retained heritage fabric, the proposed dormer windows and the rear extension to the attic. This request is titled 'Clause 4.6 Variation Statement Height of Buildings', prepared by Cracknell and Lonergan Architects dated 2 May 2025 (the written request).

  3. I find that the written request to vary the height standard addresses the matters set out at cl 4.6(3) of LEP 2022, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

  1. Pursuant to cl 4.6(3) of LEP 2014, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

  1. that compliance with the development standard in cl 4.3 of LEP 2014 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2014), and;

  2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of LEP 2014 (cl 4.6(3)(b) of LEP 2014).

  1. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

  2. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the maximum height standard in the circumstances of the case as the objectives of the standards are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

  1. Having regard to all of the above matters I am satisfied I should uphold the cl 4.6 variation request in relation to the maximum height standard in LEP 2014.

  2. Pursuant to cl 4.4 ‘Floor space ratio (FSR)’ applies to the site and prescribes a FSR of 2:1. The amended development application complies with this standard.

  3. The existing building erected on the Property is part of an item of local environmental heritage, item I1630 – Terrace Group including interiors: Sch 5 of LEP 2012. The site is also located within the heritage conservation area (HCA) C65 ‘Little Reilly Street”: Sch 5 of LEP 2012.

  4. Pursuant to cl 5.10(4) the Court cannot grant development consent to the development application unless it has considered the effect of the proposal on the significance of the item and the HCA. The development application is accompanied by a Heritage Impact Assessment which considers the significance of the Property and the proposed works. The parties agree, and I accept that, the proposed development will have an acceptable degree of impact on Local Heritage Item I1630 and the HCA as it includes a balance of preservation and restoration works, including the restoration of the terrace’s street facing appearance and interior planning. The proposed works are sympathetic to and maintain the heritage significance of the item. In considering the impact of the development application on the significance of the item and HCA I am satisfied that it is acceptable.

  5. The amended development application is also accompanied by a Proposed Construction Methodology prepared by Cantilever Consulting Engineers which documents the means of construction to ensure the fireplace and chimney breast are protected and retained.

  6. Clause 6.21C ‘Design Excellence’ in LEP 2012 applies to the development application as it involves external alterations to an existing building. The provision states that development consent cannot be granted unless, in the opinion of the consent authority, the proposed development exhibits design excellence. Having reviewed the amended development application against the matters for consideration at subcl (2) of cl 6.21C I am satisfied that the development application exhibits design excellence. My reasoning follows.

  1. The proposed development has been designed at a high architectural standard. The materials and detailing are sympathetic to the heritage value of the existing terrace and its terrace row. The proposed works include restoration of the Riley Street façade and the interior works include interpretation of existing heritage details. The rear addition has been amended to align with the rear building line of the adjoining terrace. The new works will be of a contemporary design and materials while respecting the heritage context.

  2. The proposed development involves restoration works to the exterior of the existing terrace, including but not limited to, removal of detracting sandstone features at the front, reinstating missing wrought iron and lattice work, reinstating timber front balcony, re-roofing and repainting. These works will improve the quality and amenity of the public domain by restoring the existing terrace to maintain the character of the terrace row when viewed from Riley Street. The two proposed dormers to Riley Street are designed in accordance with the controls in DCP 2012 and provide visual interest when viewed from the public domain.

  3. The proposed development will not detrimentally impact on view corridors. The proposed addition will be situated at the rear of the Site away from the primary frontage on Riley Street. Through form and materiality, the proposed additions will be visually subservient to the existing dwelling.

  4. The proposed development maintains the existing land use as a residential development in an established residential zone.

  5. As detailed in (15)-(17) the proposed development adequately responds to the heritage considerations of the Site.

  6. The proposed development will not contribute to bulk and mass of the building. As discussed above, the proposed additions are to the rear of the Site and will be visually subservient to the existing dwelling.

  7. The street frontage height when viewed from Riley Street is maintained.

  8. The proposed development has acceptable environmental impacts. There will be no overshadowing impacts on adjoining properties having regard to the orientation of the Site. The shadows cast would fall over the public space to the south of the Site, which would nonetheless still receive adequate solar access. Visual and acoustic privacy between the neighbour and the public domain is maintained through privacy screening and landscaping.

  9. The proposed development will not have any adverse impacts on the environment as it generally maintains the existing built form and retains the residential use. The excavation works for the lower ground floor will not cause irreversible damage to the environment. The design reflects the slope of the Site and is supported by a geotechnical investigation. The proposed development also includes opportunity for deep soil and landscaping which positively contributes to ecologically sustainable development.

  10. The proposed development includes a garage which is accessed from Little Riley Street, maintaining the existing driveway. There will be no impact or changes to the pedestrian, cycle, and service network.

  11. As discussed above, the proposed development involves restoration works to the exterior of the existing terrace which will improve the quality and amenity of the public domain.

  12. The interfaces at ground level between the building and the public domain is generally maintained. As discussed, restoration works are proposed to the façade and the proposed additions to the rear when viewed from the public reserve will be visually subservient to the existing dwelling.

  13. The proposed development includes opportunity for deep soil and also proposes an integrated landscape design with the planters around the courtyard to provide visual amenity and privacy.

  1. Pursuant to cl 7.4: Dwelling houses, attached dwellings and semi-detached dwellings, the site is mapped as Category B on the Land Use and Transport Integration map. Clause 7.3(1) provides that development consent must not be granted to development that includes car parking spaces in connection with a proposed use of land if the total number of car parking spaces (including existing car parking spaces) provided on the site would be greater than the maximum set out in this Division 1. Clause 7.4(b) prescribes a maximum number of car parking spaces for attached dwellings in Category B of 2 spaces for each dwelling having more than 2 bedrooms. The amended development application proposes only one car parking space in the garage on the lower ground floor plan and therefore complies with cl 7.3 of LEP 2012.

  2. Clause 7.14 of LEP 2012 relates to Acid Sulfate Soils. The Site is identified as being affected by Acid Sulfate Soils, Class 5, on the Acid Sulfate Soils Map. However, the application does not propose works requiring the preparation of an acid sulfate soil management plan.

  3. Sydney Development Control Plan 2012 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

  1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

  2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

  3. The Court notes that:

  1. The Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. D/2024/182 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

Drawing No and Revision

Title

Prepared by

Date

Architectural Plans

1

Drawing No. LEC101 Issue G

Lower Ground Floor Plan

Cracknell & Lonergan Architects Pty Ltd

2 May 2025

Drawing No. LEC102 Issue G

Ground Floor Plan

2 May 2025

Drawing No. LEC103 Issue G

First Floor Plan

2 May 2025

Drawing No. LEC104 Issue G

Second Floor Plan

2 May 2025

Drawing No. LEC105 Issue G

Attic Floor Plan

2 May 2025

Drawing No. LEC106 Issue G

Roof Plan

2 May 2025

Drawing No. LEC201 Issue G

South Elevation

2 May 2025

Drawing No. LEC202 Issue G

East Elevation

2 May 2025

Drawing No. LEC203 Issue G

West Elevation

2 May 2025

Drawing No. LEC204 Issue G

North Elevation

2 May 2025

Drawing No. LEC301 Issue G

Sections

2 May 2025

Drawing No. LEC302 Issue G

Sections

2 May 2025

Drawing No. LEC303 Issue G

Sections

2 May 2025

Drawing No. LEC401 Issue G

Area Diagrams

2 May 2025

Drawing No. LEC402 Issue G

Materials Schedule

2 May 2025

Drawing No. LEC501 Issue G

Glazing Schedule

2 May 2025

Drawing No. LEC502 Issue G

BASIX Comments

2 May 2025

Drawing No. LEC 601 Issue G

Landscape Plan

2 May 2025

Documents

2

Addendum Statement of Environmental Effects

James Lovell and Associates Pty Ltd

2 May 2025

3

Addendum Statement of Heritage Impact

Weir Phillips Heritage

2 May 2025

4

Schedule of Amendments

Cracknell & Lonergan Architects Pty Ltd

2 May 2025

5

Geotechnical Investigation

Green Geotechnics

8 April 2025

6

Proposed Construction Methodology

Cantilever Consulting Engineers

23 April 2025

7

BASIX Certificate No. A1738726_03

Cracknell & Lonergan Architects Pty Ltd

24 April 2025

8

Clause 4.6 Variation Request

Cracknell & Lonergan Architects Pty Ltd

2 May 2025

  1. The written request prepared by Cracknell & Lonergan Architects Pty Ltd dated 2 May 2025 made pursuant to cl 4.6 of LEP 2012 seeking to vary the height development standard in cl 4.3 is upheld.

  1. The Court orders that:

  1. The Applicants are granted leave to file the Amended Development Application.

  2. The Applicants are to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of ($2,300) within 28 days of these orders.

  3. The appeal is upheld.

  4. Development Application No. D/2024/182, as amended for the restoration and repair of three storey heritage terrace and alterations and additions to the rear wing to an existing property on land legally described as Lot 12 Deposited Plan 34189 and known as 441 Riley Street, Surry Hills NSW 2010 is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A (238 KB, pdf)

Decision last updated: 08 July 2025

Cases Citing This Decision

0