Swanvest Pty Ltd v Council of the City of Sydney

[2024] NSWLEC 1339

Land and Environment Court

New South Wales

Medium Neutral Citation:

Swanvest Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1339

Hearing dates:

Conciliation Conference on 9 & 22 May 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. D/2023/970, as amended, for alterations and additions to the existing building for a retail premises, including signage at 396 George Street, Sydney, NSW 2000, known as Lot 3 in DP 39023, is determined by the grant of consent subject to the conditions at Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000 within 14 days of the date of these orders.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to heritage building – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Industry and Employment) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

Sydney Local Environmental Plan 2012

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Swanvest Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
F Garrett (Solicitor) (Respondent)

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

File Number(s):

2024/46093

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the City of Sydney (the Council) of D/2023/970 (the Development Application) for alterations and additions to an existing heritage building for a retail premises, including signage (the Proposed Development) at 396 George Street, Sydney NSW 2000, known as Lot 3 in DP 39023 (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 was held on site and at Court. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. The key changes made to the Development Application essentially include:

1. Retention of sandstone nibs in the basement;

2. Clarification in respect of the extent of proposed basement excavation and proposed excavation methodology;

3. Redesign of internal stairs (in terms of direction/orientation) and the mezzanine floor to retain the remnant timber joists;

4. Inclusion of a glass lift core;

5. Inclusion of a glass balustrade on the mezzanine floor;

6. Revised schedule of materials and finishes, including paint colour;

7. Revised Gross Floor Area (GFA) calculations.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

Background Facts

6. The Site has a total area of 116m², containing a 2-storey building with a basement and ground floor that is used as a commercial premise, and is located at the southeastern corner of George Street and King Street, in the City of Sydney CBD. The Site is located in a SP5 Metropolitan Centre zone pursuant to the Sydney Local Environmental Plan 2012 (SLEP).

7. The Site is listed in Schedule 5, Part 1 of the SLEP as Heritage Item No. I1778 as the ‘Former “Ashdown & Co” building including interior’ and dates back to the 1860s. The Site is also in close proximity to several other heritage items.

Jurisdictional matters

8. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters that apply to the Site and the Proposed Development.

State Environmental Planning Policies

9. I have considered the jurisdictional issues raised by the following environmental planning instruments as set out in the Statement and accept the parties’ assessment and consideration:

1. (1) State Environmental Planning Policy (Resilience and Hazards) 2021 – at paragraphs 20 to 23 in the Statement

2. (2) State Environmental Planning Policy (Industry and Employment) 2021 – at paragraphs 24 to 28 in the Statement

Sydney Local Environmental Plan 2012 (SLEP)

10. The Development Application, as amended, remains for retail/commercial use, which is permissible with consent in the SP5 Metropolitan Centre zone and the Proposed Development is consistent with the objectives of the zone.

11. As stated above the subject building on the Site is a local listed heritage item. Section 5.10 of the SLEP provides that consent must not be granted to a development unless the consent authority has considered the impact of the development with respect to a heritage item. The Development Application is accompanied by the Statement of Heritage Impact prepared by Weir Philips dated 19 December 2023 and a Supplementary Letter prepared by Weir Phillips dated 15 March 2024 which confirms that the development:

1. Will retain and conserve the existing historic internal and external components, including, cast iron truss, cast iron columns, timber framing and joinery, and masonry façade of the building;

2. The proposed retail use is consistent with the historic use of the site;

3. Restores functionality to the basement and first floor and rectify the impacts of the previous modifications to the historic levels of the building;

4. Retains the views to and from adjacent heritage items and its contribution to the streetscape will be retained; and

5. Is consistent with the existing Conservation Management Plan.

12. Conditions of consent have been imposed to ensure the development will not result in adverse heritage impacts (see conditions 3, 4, 11, 12, 32).

Sydney Development Control Plan 2012 (SDCP)

13. The provisions of the SDCP that are of relevance and have been taken into account in assessing the Development Application, as amended. The parties agree that the revised plans demonstrate a satisfactory built form outcome when measured against the applicable zoning objectives and SDCP.

14. Between 7 and 22 November 2023, the Development Application was notified by the Respondent. No submissions were received in response to the notification.

15. I have considered the jurisdictional issues raised by the parties as set out in the Statement and am satisfied that no jurisdictional impediments arise preventing the Court from allowing the appeal and granting consent to the Development Application, as amended.

Conclusion

16. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

17. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

18. Between 7 and 22 November 2023, the Development Application was notified by the Respondent. No submissions were received in response to the notification.

Notations

19. The Respondent, as the relevant consent authority, agrees, under ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. D/2023/970 in accordance with the amended plans and additional information listed below.

Index to Amended Development Application material

TAB	DOCUMENT	DATE
1.	Architectural Plans, prepared by David Katon Studio Pty Ltd • 00 – Site Plan • 01 – Basement Plan (Rev E) • 02 – Ground Floor Plan (Rev D) • 03 – First Floor Plan (Rev D) • 04 – Elevation North (Rev E) • 05 – Elevation West (Rev E) • 06 – Street Entry Elevation (Rev E) • 07 – Section A (Rev D) • 08 – Section B (Rev D) • 09 – Renders (Rev D) • 10 – Signage (Rev D) • 11 – GFA (Rev F)	15 April 2024
2.	Supplementary Letter re Heritage, prepared by Weir Phillips	15 March 2024
3.	Structural Letter, prepared by TTW	19 March 2024
4.	Historical Archaeological Assessment, prepared by Artefact	19 March 2024
5.	Supplementary Statement of Environmental Effects, prepared by ABC Planning	May 2024
6.	Addendum to Supplementary Statement of Environmental Effects re Chapter 3 of SEPP (Industry and Employment) 2021, prepared by ABC Planning	May 2024
7.	Statement/Opinion on Site Contamination, prepared by Sullivan Environmental Sciences	8 May 2024
8.	Amended Cost Summary Report	6 May 2024

Orders

20. The Court orders:

1. The appeal is upheld.

2. Development Application No. D/2023/970, as amended, for alterations and additions to the existing building for a retail premises, including signage at 396 George Street, Sydney, NSW 2000, known as Lot 3 in DP 39023, is determined by the grant of consent subject to the conditions at Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000 within 14 days from the date of these orders.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 19 June 2024