Sydney Link Developments ATF Sydney Link Developments Trust v Fairfield City Council

[2020] NSWLEC 1268

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sydney Link Developments ATF Sydney Link Developments Trust v Fairfield City Council [2020] NSWLEC 1268

Hearing dates:

Conciliation conference held on 19 June 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the application to rely on the plans listed in condition 2 of the conditions of consent for Modification Application No. 556.4/2015 at Annexure A.

(2)   The appeal is upheld.

(3)   Modification Application No. 556.4/2015 to modify the development approved under Development Application No. 556.1/2015, as modified by the approved Modification Application No. 556.2/2015, is approved in the following terms:

(a)   extension of the communal open space on the roof level;

(b)   extension of the planter boxes on roof level around the communal open space;

(c)   increase in height of lift overrun of Lift No. 2 to RL32.3; and

(d)   relocation of basement columns and other consequential amendments, including alteration to the management of traffic within the basement.

(4) Development Consent No. 556.1/2015, granted by the Respondent on 31 October 2016, for the demolition of existing structures, removal of 7 trees and construction of a 4 storey mixed use building, comprising a single tenancy commercial premises at the ground floor level with 3 levels of residential accommodation above containing 29 residential dwellings, located over 2 levels of basement car park containing 54 parking spaces, on the land at 68-70 The Horsley Drive, Carramar, as modified by Application No. 556.2/2015, is further modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in the conditions of consent at Annexure A.

(5)   Development Consent No. 556.1/2015, as modified, is subject to the consolidated conditions of consent at Annexure B.

Catchwords:

MODIFICATION APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Fairfield Local Environmental Plan 2013

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Sydney Link Developments ATF Sydney Link Developments Trust (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
DG Briggs & Associates (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/391303

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application No. 556.4/2015 for the extension of the communal open space on the roof level; the extension of planter boxes around the communal open space on the roof level; an increase in the height of the lift overrun of Lift 2 to RL 32.3; and the reconfiguration of the basement column locations and other consequential amendments including the management of traffic in the basement (the proposal) at 68-70 The Horsley Drive, Carramar (Lot 1, DP 829961) (the site) by Fairfield City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 June 2020. I 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.

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 4.16 of the EPA Act to grant consent to the development application.

5. The parties agreed that the amendments made to the proposal are minor within the meaning of s 8.15(3) of the EPA Act.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(2) of the EPA Act and Fairfield Local Environmental Plan 2013 (LEP 2013).

Planning framework and consideration

7. The site is zoned B1 Neighbourhood Centre pursuant to LEP 2013. The objectives of the B1 zone, to which regard must be had, are:

• To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

• To provide for shop top housing that supports the business activity in the centre.

8. I am satisfied that the proposed modification is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act, because the form and component parts of the modified development are consistent with the original consent, including the footprint of the development, and the only changes to the originally approved building envelope of the development are the augmentation of the roof terrace area and the height of the lift overruns.

Orders

9. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the plans listed in condition 2 of the conditions of consent for Modification Application No. 556.4/2015 at Annexure A.

2. The appeal is upheld.

3. Modification Application No. 556.4/2015 to modify the development approved under Development Application No. 556.1/2015, as modified by the approved Modification Application No. 556.2/2015, is approved in the following terms:

1. extension of the communal open space on the roof level;

2. extension of the planter boxes on roof level around the communal open space;

3. increase in height of lift overrun of Lift No. 2 to RL32.3; and

4. relocation of basement columns and other consequential amendments, including alteration to the management of traffic within the basement.

4. Development Consent No. 556.1/2015, granted by the Respondent on 31 October 2016, for the demolition of existing structures, removal of 7 trees and construction of a 4 storey mixed use building, comprising a single tenancy commercial premises at the ground floor level with 3 levels of residential accommodation above containing 29 residential dwellings, located over 2 levels of basement car park containing 54 parking spaces, on the land at 68-70 The Horsley Drive, Carramar, as modified by Application No. 556.2/2015, is further modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in the conditions of consent at Annexure A.

5. Development Consent No. 556.1/2015, as modified, is subject to the consolidated conditions of consent at Annexure B.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (159678, pdf)

Annexure B (360149, pdf)

**********

Amendments

21 July 2020 - Pursuant to UCPR r 36.17, amend the orders delivered on 25 June 2020 in the following manner:
1. Replace condition 1B in Annexure A with the following:
“1B. Compliance with Plans and Conditions
i. The lighting to the roof terrace is to be so designed and installed to ensure that all lighting:
(a) Provided by the bollards is below the finished level of the surrounding planter box;
(b) Provided to the pergolas is shrouded to direct lighting downwards, below the finished level of the surrounding planter box.”

2. Replace condition 1B in Annexure B with the following:

“1B. Compliance with Plans and Conditions

i. The lighting to the roof terrace is to be so designed and installed to ensure that all lighting:

(a) Provided by the bollards is below the finished level of the surrounding planter box;

(b) Provided to the pergolas is shrouded to direct lighting downwards, below the finished level of the surrounding planter box.”

Decision last updated: 21 July 2020