Sundaraj v The Council of the City of Sydney

[2025] NSWLEC 1094

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sundaraj v The Council of the City of Sydney [2025] NSWLEC 1094

Hearing dates:

Conciliation conference 16 October 2024 and 31 January 2025

Date of orders:

20 February 2025

Decision date:

20 February 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application D/2023/845, as amended for alterations and additions to the existing residential terrace at 141 Brougham Street, Woolloomooloo, subject to the conditions of consent at 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, 8.7, 8.15,

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 37

State Environment Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy Biodiversity and Conservation 2021, Div 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.100

The Sydney Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.21C, 7.14

Texts Cited:

Development Near Rail Corridors and Busy Roads - Interim Guidelines, 2008

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Keran Sundaraj (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
J Mort (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2024/00186897

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal brought by the Applicant, Sundaraj under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application D/2023/845. The development application seeks consent for alterations and additions to the existing residential terrace at 141 Brougham Street, Woolloomooloo (Lot 1 DP 1194367).

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 16 October 2024. Following the conciliation conference the Applicant made amendments to their development application responsive to the Respondent’s contentions.

3. A further conciliation conference was requested by the parties and was listed by the Court on 31 January 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.

4. 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 with the written consent of the owners of the subject site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent between 22 September and 9 October 2023. No submissions were received.

3. The amended development application is accompanied by a BASIX certificate, complying with the requirements of State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 and s 27 of the EPA Regulation. Condition 2(d) of Annexure A requires the removal (on heritage grounds) of awnings prescribed in the BASIX certificate. The removal of the awnings will be the subject of a BASIX Heritage Alternative Assessment as the specific heritage requirements of the property are in conflict with the BASIX requirements.

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 and the works do not require excavation. The parties agree, and I accept, that s 4.6 of SEPP RH is satisfied.

5. Pursuant to State Environmental Planning Policy Biodiversity and Conservation 2021 (SEPP BC) the site is within the Sydney Harbour Catchment and eventually drains into Sydney Harbour. However, the site is not located in the Foreshores Waterways Area or adjacent to a waterway. Therefore, with the exception of the control of improved water quality and quantity, the controls set out in Division 2 of SEPP BC are not applicable to the proposed development. The development application is accompanied by Stormwater Management Plans which provide for the capture and conveyance of stormwater from the site to Council's stormwater system in McElhone Street to the rear, via an existing registered easement for drainage. The parties agree, and I accept, that the provisions of SEPP BC are met.

6. The site is located within 100m of a railway line and the development proposed residential accommodation, accordingly s 2.100 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies. Pursuant to subs (2) a consent authority must take into account the Planning Secretary's Guidelines "Development Near Rail Corridors and Busy Roads - Interim Guidelines". Taking those guidelines into account, the site is located outside both Zone A and B for noise sensitive development. On this basis I am satisfied that given the distance of the dwelling from the railway line the development will not be subject to unacceptable noise or vibration.

7. 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.

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

9. Clause 4.3 (Height of Buildings) in LEP 2012 applies to the site. It prescribes a maximum building height of 15 metres: cl 4.3(2). The maximum proposed building height of the development is 13.86 metres and is therefore compliant with the building height control.

10. The development application seeks a variation to the maximum floor space ratio (FSR) control standard of 0.5:1 as the development has an FSR of 0.55:1. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by SJB Planning. This request accords with the amended plans and seeks a variation to the FSR development standard. I have reviewed the request and, in accordance with cl 4.6 of 2012, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of 2012).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of 2012 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R1 General Residential zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of LEP 2012 have been reached and therefore there is power to grant development consent to the proposed development notwithstanding the breach of the FSR control.

11. The existing building erected on the Property is an item of local environmental heritage, item I2127 – Terrace Group including interiors: Sch 5 of LEP 2012. Further, the Property is identified as being within the Woolloomooloo Heritage Conservation Area (HCA) and is nominated as being a “contributory item” within the HCA. The proposed development involves the alteration of a heritage item, and as such development consent is required under cl.5.10(2) of the LEP.

12. 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 finds that the rear wing, being a non-original element, has “low significance”. It is the rear wing in which the majority of the proposed alterations are occurring. The development application has reduced the scale of the proposed alterations and increased the retention of existing fabric. In considering the impact of the development application on the significance of the item and HCA I am satisfied that it is acceptable.

13. Clause 6.21C ‘Design Excellence’ in LEP 2012 applies to the site and 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 amended plans propose a reduced scope of works which is a more sympathetic scheme in response to surrounding heritage items and heritage conservation area pursuant to Clause 6.21C(2)(a) of LEP 2012.

2. The amended plans have resolved heritage, streetscape and visual privacy. I find that the proposed development will not cause unreasonable environmental impacts with regards to overshadowing and privacy impacts.

3. The form, materials and detailing of the amended proposal achieve a high standard of architectural design.

4. The proposed development involves a small increase of the footprint of the first floor to accommodate a larger kitchen area. The width of the extension is consistent with a recent extension approved on the adjoining terrace. The bulk, massing and modulation of the building is acceptable and appropriate within the terrace row. The form and external appearance of the amended proposal are responsive to the site’s opportunities and constraints, including the dense urban context of the site.

5. The architectural plan set includes a detailed schedule of finishes. The proposed materials and finishes incorporate desirable elements derived from the heritage row and the broader conservation area. The materials are sympathetic to the Victorian style of the existing dwelling.

6. The proposed works are not adjacent to the public domain, being concentrated to the side and rear of the existing dwelling. The proposed works are not highly visible from surrounding streets and public areas.

7. The land is suitable for the development because a residential use is maintained, and the design is responsive to the built environment including the identified values of nearby heritage items and heritage conservation area.

8. The height is compliant with the height of building development standard for the site, and the FSR variation is in a form which is acceptable.

9. The landscaping is integrated into the architectural design of the amended proposal.

10. The proposed development represents the improvement and adaptive reuse of existing housing stock. The development will be subject to BASIX requirements ensuring the future development is carried out in a sustainable manner.

14. Clause 5.21 of LEP 2012 applies as a small part of the site fronting onto Brougham Street is identified as being subject to flooding on both 1% AEP and PMF flood events. The proposed first floor addition amounts to less than 40 square metres of habitable floor area at or above the same level as the existing adjoining approved floor level for habitable floor area and no excavation is proposed to the effected part of the site. In determining the development application I have considered the matters listed at subcl (3) and the City of Sydney Interim Floodplain Management Policy. On this basis I am satisfied that the requirements of cl 5.21(2) of LEP 2012 are met.

15. 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.

16. 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.

Conclusion

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

6. 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.

7. The Court notes that:

1. The Respondent, City of Sydney Council, approves pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021(EPA Regulation), the amendment of development application no. D/2023/845 in accordance with the amended plans and additional information listed below:

Document Name		Prepared by	Date
Written request – Clause 4.6 – Exception to Development Standards		SJB Planning	28.11.2024
BASIX Certificate No. A497393_02		14.11.2024
Architectural Plans		CO-AP
Roof / Site Analysis - drawing No. 02-01-00, issue D
Level 00 - drawing No. 02-01-01, issue D
Level 01 - drawing No. 02-01-02, issue D
Level 02 & 03 - drawing No. 02-01-03, issue D
North Elevation - drawing No. 02-02-01, issue D
East + West Elevation - drawing No. 02-02-02, issue D
South Elevation - drawing No. 02-02-03, issue D
Section AA - drawing No. 02-03-01, issue D
Section BB - drawing No. 02-03-02, issue D
Section CC - drawing No. 02-03-03, issue D
Finishes Sheet 1 - drawing No. SCH-F-01, issue D
Finishes Sheet 2 - drawing No. SCH-F-02, issue D
Finishes Sheet 3 - drawing No. SCH-F-03, issue C

2. The amendments to the Development Application are minor and no order for costs is required under section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The Applicant is not required to lodge the Amended Development Application on the NSW Planning Portal pursuant to section 37(7) of the Environmental Planning and Assessment Regulation 2021.

4. The Applicant's written request under cl 4.6 of the LEP 2012 prepared by SJB Planning and dated 28 November 2024, seeking a variation of the development standard for floor space ratio set out in cl 4.4 of LEP 2012, is upheld.

Orders

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application D/2023/845, as amended for alterations and additions to the existing residential terrace at 141 Brougham Street, Woolloomooloo, subject to the conditions of consent at Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 21 February 2025