STC and Co Pty Ltd (ACN 613 856 518) v City of Sydney Council

[2021] NSWLEC 1446

Land and Environment Court

New South Wales

Medium Neutral Citation:

STC & Co Pty Ltd (ACN 613 856 518) v City of Sydney Council [2021] NSWLEC 1446

Hearing dates:

Conciliation conference on 7 June 2021

Date of orders:

4 August 2021

Decision date:

04 August 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant be granted leave to rely on the plans described in condition 1 of annexure ‘A’.

(2) The Applicant is to pay costs in the amount of $4,000.00 being costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent.

(3) The appeal is upheld.

(4) Development Application DA2020/917 for the demolition of existing structures, construction of a 5 storey mixed use development containing 1 retail premises, 8 units, communal roof terrace and basement storage and bike parking at 21 Missenden Road, Camperdown is approved subject to the conditions contained at Annexure ‘A’.

Catchwords:

APPEAL – development application – mixed use development – retail use and shop top housing – conciliation conference – agreement reached – consent granted

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000 cl 50, Schedule 1

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy No 55 – Remediation of Land cl 7

Texts Cited:

City of Sydney Contaminated Land Development Control Plan 2004

Category:

Principal judgment

Parties:

STC & Co Pty Ltd (ACN 613 856 518) (Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
M Mallos (Solicitor) (Respondent)

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

File Number(s):

2021/87469

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling and the construction of a mixed use development including a retail tenancy and residential apartments at 21 Missenden Road, Camperdown. The original development application also sought consent for works within an adjacent site at 45A Marsden Street, Camperdown, but this is no longer sought. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 7 June 2021.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 26 July 2021 and is supported by an agreed statement of jurisdictional prerequisites. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendment to the development application changes the proposed development by removing a storey and making other amendments to the building form. The amendment to the development application also deleted works that had previously been proposed to be carried out at 45A Marsden Street, Camperdown. As a result of the amendment to the development application, the proposed development that is the subject of the agreement is for the construction of a 5-storey mixed use development containing one retail premises, 8 residential units, a communal roof terrace and basement storage.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development is for the purpose of retail premises and shop top housing, which is permissible in the B1 Neighbourhood Centre zone in which the site is located, pursuant to the Sydney Local Environmental Plan 2012 (SLEP 2012).

• The proposed development complies with the applicable development standards in the SLEP 2012 for height, floor space ratio and minimum lot size.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The current use of the site does not fall within the Council’s list of potentially contaminating activities in Annexure 1 of the City of Sydney Contaminated Land Development Control Plan 2004.

• The amended development application is accompanied by a statement by a qualified designer, pursuant to the requirement in cl 50(1A) of the Environmental Planning and Assessment Regulation 2000.

5. 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 also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court orders that:

1. The applicant be granted leave to rely on the plans described in condition 1 of Annexure ‘A’.

2. The Applicant is to pay costs in the amount of $4,000.00 being costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent.

3. The appeal is upheld.

4. Development Application DA2020/917 for the demolition of existing structures, construction of a 5 storey mixed use development containing 1 retail premises, 8 units, communal roof terrace and basement storage and bike parking at 21 Missenden Road, Camperdown is approved subject to the conditions contained at Annexure ‘A’.

……………………….

J Gray

Commissioner of the Court

Annexure A (362133, pdf)

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Decision last updated: 04 August 2021