Tauszik v Council of the City of Sydney

[2022] NSWLEC 1337

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tauszik v Council of the City of Sydney [2022] NSWLEC 1337

Hearing dates:

Conciliation conference on 16 March 2022, 8 April 2022, 13 May 2022, 7 and 16 June 2022

Date of orders:

30 June 2022

Decision date:

30 June 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) The Clause 4.6 Request by Urban Perspectives filed 16 June 2022 is upheld.

(3) Development Application D/2020/20 for the demolition of the existing buildings and construction of a new seven (7) storey mixed use development comprising one basement level, ground floor retail and seven residential apartments above at 503-505 Elizabeth Street Surrey Hills is determined by the grant of consent subject to the conditions set out in Annexure A.

(4) The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $5,000 within 28 days.

Catchwords:

DEVELOPMENT APPLICATION – demolition – 7 storey mixed use – height control – heritage impact –conciliation conference – agreement between the parties – orders

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2021, Schedule 1, par 1.11

Environment and Planning Assessment Regulation 2000, cll 3, 49, 50, 55

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.56, 8.7, 8.15

Land and Environment Court Act 1979, ss 34, 39

State Environment Planning Policy 55 – Remediation of Land

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30

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

Sydney Local Environmental Plan 2012, cll 2.3(2), 4.3, 4.4, 4.6, 6.21C

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Limited (2018) 233 LGERA 170; [2018] NSWCA 245

Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61

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

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, (July 2015)

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Anthony John Tauszik (Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
City of Sydney Council (Respondent)

File Number(s):

2021/348675

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the City of Sydney Council’s (Council) refusal of development application D/2020/20 (D/2020/20) for the demolition of existing buildings and construction of a new seven storey mixed use development comprising one basement level, ground floor retail and 8 residential apartments above:

1. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

2. The statutory power or function to be exercised in determining the proceedings are s 4.16 of the EPA Act, and ss 34(3)(a) and (b), and 39(2) of the LEC Act.

3. The subject site is identified as Lot 26, Section 4, in Deposited Plan 22 and is located at 503-505 Elizabeth Street, Surry Hills, NSW and has an area of 173.8m² (the Site).

2. The Site is located on the western side of Elizabeth Street, between Bedford Street to the north and Belvoir Street to the south. It has a primary street frontage of 6.7m to Elizabeth Street and a secondary street frontage of 6.7m to Little Buckingham Street to the rear. The Site has a fall of approximately 400mm from Little Buckingham Street to Elizabeth (west to east), and a fall of approximately 300mm from south to north.

3. The Site contains a pair of 2 storey, ‘bald faced’ Victorian terraces fronting Elizabeth Street with a 2 storey building facing Little Buckingham Street. These buildings were originally separated by rear yards but have since been joined. The buildings are currently used as 4 residential apartments, including 2 ground floor studio apartments fronting Elizabeth Street, one ground floor apartment accessed from Little Buckingham Street and a larger apartment across the entire site on the first floor accessed from Little Buckingham Street.

4. The Site is located within the ‘Cleveland Garden’ Heritage Conservation Area (C62) and is identified as a neutral building.

5. The Site is subject to a road widening order under the provision of s 262 of the Local Government Act 1919. The realignment of Elizabeth Street between Randle Land and Cleveland Street, Surry Hills was proclaimed in the NSW Government Gazette no. 104 on 30 June 1950. Council has previously approved new development on the western side of Elizabeth Street with construction to the boundary-lines, and indicates that as a precedent has been set the road widening orders is not proceeding.

6. The surrounding development includes a mix of commercial and residential uses with buildings of various heights and scales:

1. Directly to the north of the Site is a row of 3 x 2 storey terrace buildings fronting Elizabeth Street, comprising both residential and commercial uses. These terraces are identified as contributory buildings within the heritage conservation area.

2. Immediately to the south of the Site is a 7-storey residential flat building at 507-515 Elizabeth Street. Further along Elizabeth Street are 7 and 8 storey contemporary buildings with a mix of commercial and residential uses.

3. East of the Elizabeth Street side of the Site is a 7-storey mixed use development at 460-468 Elizabeth Street, and a 3 part 4 storey warehouse style building at 470-484 Elizabeth Street.

4. West of the Site are a number of 2 and 3 storey buildings with vehicular access from Little Buckingham Street.

5. Set out below are a number of photographs depicting the Site:

Figure 1: Aerial view of the Site – extract from p 3 of Council’s Statement of Facts and Contentions filed 01/03/2022 (SOFAC).

Figure 2: Site views from Elizabeth Street – extract from p3 of SOFAC.

Figure 3: Site viewed looking north-west from Elizabeth Street, showing the southern wall and its placement next to 507-515 Elizabeth Street – extract from p4 of the SOFAC.

Figure 4: Site views from Elizabeth Street looking south showing the contributing terraces and 507-515 Elizabeth Street – extract from p5 of the SOFAC.

Legislation

Environmental Planning and Assessment Act 1979

4.15   Evaluation

(cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

……

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

……

(6) Definitions In this section—

(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

s 4.15 previously s 79C): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2016 No 20, Sch 4.1 [1] [2]. Am 2018 No 25, Sch 4 [5] [17].

Sydney Local Environmental Plan 2012

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

……

cl 4.6: Am 2014 (366), Sch 1 [1]; 2015 (486), Sch 1 [1]; 2016 (164), Sch 1 [1]; 2016 (226), Sch 1 [2]; 2016 (443), Sch 1 [1]; 2016 (761), Sch 1 [1]; 2017 (47), Sch 1 [1]; 2017 (750), Sch 1 [1]; 2018 (296), cl 4; 2018 (575), Sch 1 [1]; 2019 (14), Sch 1 [1]; 2019 (146), Sch 1 [1]; 2019 (461), Sch 1 [1] [2]; 2020 (463), Sch 1[1]; 2021 (355), Sch 1[1]; 2021 (535), Sch 1[1]; 2021 (717), Sch 1[5]–[7].

7. 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 March 2022, 8 April 2022, 13 May 2022, 7 and 16 June 2022. I presided over the conciliation conference.

8. 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. This decision involved the appeal being upheld pursuant to s 4.16 of the EPA Act, and the cl 4.6 request pursuant to vary the development standard in cl 4.3 of Sydney Local Environmental Plan 2012 (SLEP 2012), and granting development consent to DA/2020/20 for the demolition of the existing buildings and construction of a new 7 storey mixed use development comprising one basement level, ground floor retail and seven residential apartments above subject to the Conditions of Consent in Annexure A.

9. 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, and ss 34(3) and 39(2) of the LEC Act to uphold the appeal and the cl 4.6 request and grant development consent. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be and explained how each jurisdictional request has been satisfied as follows:

1. DA/2020/20 was lodged with Council on 13 January 2020, with the written consent of the owner, the Applicant, on the form, in accordance with cl 49(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

2. DA/2020/20 was notified and advertised for a period of 21 days between 16 January 2020 and 6 February 2020: 401 properties were notified and 3 submissions raised the following issues:

1. Height and bulk of the proposed development;

2. Poor height transition to low density buildings to the north;

3. Odours from garbage room onto the lightwell adjoining 507-515 Elizabeth Street, and

4. If approved, a requirement for a dilapidation report.

3. On 16 December 2020 the Local Planning Panel resolved to refuse consent for DA/2020/20.

4. On 8 December 2021 the Applicant filed this appeal, relying upon Schedule 1, par 1.11[2] of COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 amending s 4.56 of the EPA Act to extend the period to permit an appeal to this Court from 1 year to 2 years, as this development application was lodged prior to 25 March 2020, and the appeal rights would have expired but for this amendment (Covid-19 Amendments).

5. During the s 34(1) conciliation conference the Applicant amended the plans to resolve contentions raised by the Council. The Council consented to the amendments to DA/2020/20 to address inadequacies in the documentation submitted as part of the original proposal by submission of amended architectural plans, landscape plans, revised BASIX Certificate, revised cl 4.6 request, and a revised structural engineer’s report. Council is satisfied with the amended proposal because:

1. It complies with the floor space ratio (FSR) development standard pursuant to cl 4.4 of SLEP 2012.

2. Subject to the conditions of consent in Annexure A, the amended proposal is generally consistent with the relevant objectives and provisions of Sydney Development Control Plan 2012 (SDCP 2012) and the Apartment Design Guide (ADG).

3. It includes partial retention of the existing terraces fronting Elizabeth Street, which play a positive role in the heritage conservation area and contribute to appropriate massing of the streetscape.

4. It adequately addresses the context of the heritage conservation area, provides an improved relationship between the tower and lower building, provides acceptable amenity for future occupants and integrates landscape design. The amended plans therefore are therefore considered to exhibit design excellence, subject to conditions in Annexure A, in accordance with cl 6.21C of the SLEP 2012.

5. It will not result in adverse environmental impacts, subject to the conditions of consent in Annexure A, and is considered to be in the public interest in accordance with s 4.15 of the EPA Act.

6. Council, as the relevant consent authority, has agreed pursuant to cl 55(1) of the EPA Regulation to the Applicant amending D/2020/20 in accordance with the following documentation:

Document:	Prepared by:	Dated:
AD-DA000 – Rev F: Cover Page	John Ferres Architect	30.05.22
AD-DA002 – Rev H 3D Views – Sheet 1	John Ferres Architect	30.05.22
AD-DA003 – Rev B: Demolition Plan	John Ferres Architect	30.05.22
AD-DA004 – Rev E: Context – Street Elevation	John Ferres Architect	30.05.22
AD-DA005 – Rev D: Site Analysis Plan	John Ferres Architect	30.05.22
AD-DA100 – Rev H: Floor Plans Sheet 1	John Ferres Architect	30.05.22
AD-DA101 – Rev G: Floor Plan Sheet 2	John Ferres Architect	30.05.22
AD-DA102 – Rev F: Floor Plan Sheet 3 – Adaptable Unit	John Ferres Architect	30.05.22
AD-DA200 – Rev B: Elevations 1	John Ferres Architect	30.05.22
AD-DA201 – Rev H: Elevations 2	John Ferres Architect	30.05.22
AD-DA202 – Rev H: Sections	John Ferres Architect	30.05.22
AD-DA301 – Rev F: Solar Access – June 21st	John Ferres Architect	30.05.22
AD-DA303 – Rev H: GFA Diagrams	John Ferres Architect	30.05.22
AD-DA305 – Rev E: Shadows – June 21st	John Ferres Architect	30.05.22
Design Statement / SEPP 65 Principles	John Ferres Architect
Compliance Table for SEPP 65 ADG	John Ferres Architect	31.05.22
Clause 4.6 Request for Height Control	Urban Perspectives	16.06.22
BASIX Certificate No. 1049373M_03 and Specifications	Integreco Consulting Pty Ltd	01.06.22
NatHERS Certificate No. 0004476070	Integreco Consulting Pty Ltd	1.06.22
Structural Engineering Letter	Steve Whelan & Associates Pty Ltd	21.04.22
Landscape Plan (drawing no. LP01, Rev B)	John Ferres Architect	30.05.2022
Detailed Site Investigation	Australian Geotechnical Pty Ltd	5.11.20

7. The amended plans and supporting documentation were uploaded to the NSW Planning portal on 16 June 2022 by the Applicant.

8. The Applicant filed the amended plans and documents with the Court on 16 June 2022, together with the Site Assessment Report in relation to potential contamination by Australian Geotechnical Pty Ltd dated 5 November 2022.

9. The Council renotified the amended development application from 16 May 2022 to 31 May 22. The Council received 3 further submissions, a copy of which were filed under cover of List of Objectors on 14 June 2022. The further submissions raised the following objections: filling-in of the formerly proposed lightwell, traffic, and amenity. The Council considered all the submissions, and after taking into account compliance with the planning controls, considers that the amended plans and conditions of consent in Annexure A represent a better planning outcome.

10. D/2020/20 is for the purpose of a 7-storey mixed use development as defined in the Dictionary to SLEP 2012.

11. The Site to which D/2020/20 relates is situated within the Zone B4 Mixed Use pursuant to the provision of the SLEP 2012. Development for the purpose of a ‘residential flat building’ and ‘commercial premises’ are permissible with consent in accordance with the Land Use Table relating to Zone B4 Mixed Use in SLEP 2012.

12. The objectives of the Zone B4 Mixed Use are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

13. D/2020/20 is consistent with the objectives of the Zone B4 because (Applicant’s Statement of Environmental Effects, Volume 1, tab 4 of Class 1 Application):

1. “The proposed development provides two different uses within the same development providing commercial uses and housing for those who live and work in the area.

2. “The commercial use provides employment opportunities in the area.

3. “The proposal provides bicycle parking for the housing units and visitors. Its location near bus routes and Central Railway Station encourages walking, cycling and the use of public transport.

4. “The proposal activates the ground floor area along Elizabeth Street through the provision of a commercial spaces (viz), which in turn encourages pedestrian activity.”

As required by cl 2.3(2) of SLEP 2012 the Court can be satisfied that the objectives of the zone will be met.

14. A request pursuant to cl 4.6 of SLEP 2012 dated 6 June 2022 by Urban Perspectives was filed on 6 June 2022:

1. The exception to the development standard is in respect of the height control development standard in cl 4.3 of SLEP 2012. Clause 4.3(2) provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The maximum height shown on the relevant map is 22m. The height exceedance of 1.05m or 4.8% variation to the control relates to the lift overrun, and the services on the roof being air conditioning plant and photovoltaic cells. No habitable GFA is within the area above the 22m building height plane, nor any structures associated with the communal open space.

1. The Court can be satisfied as to the following matters about which it is required to be satisfied pursuant to cl 4.6(4) of SLEP 2012 that the Applicant’s written request has adequately addressed the following matters in cl 4.6(3) of SLEP 2012:

1. That compliance with the development standard is unreasonable or unnecessary in the circumstances of this matter, as the objectives of the standard are achieved notwithstanding the non-compliance;

2. That there are sufficient environmental planning grounds to justify the contravention of the development standard for the reasons in the submitted request; and

3. That the proposed development will be in the public interest because it is consistent with the objectives of the relevant development standard and the objectives for development in Zone B4 of SLEP 2012.

15. The parties are of the view, and the Court can be satisfied, that the proposed development in its amended form exhibits design excellence in accordance with cl 6.21C of SLEP 2012, and the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and associated ADG. On 16 June 2022 the parties filed a Compliance Table for SEPP 65 and the ADG by John Ferres, Architect, dated 31 May 2022 which contains 94 pages. I am satisfied that:

1. The amended D/2020/20 is supported by a SEPP 65 Compliance Table by John Ferres dated 30 May 2022 and a Design Verification Statement by John Ferres dated 16 June 2022 in satisfaction of cl 50(1A) of the EPA Regulation. The Design Verification Statement confirms that D/2020/20 has been designed to be consistent with the design quality principles set out in Schedule 1 of SEPP 65, and the objectives of Parts 3 and 4 of the ADG.

2. Clauses 28 and 30 of SEPP 65 have been satisfied.

16. Heritage: The Site is located within the ‘Cleveland Garden Heritage Conservation Area (C62) of SLEP 2012, and is identified as a neutral building. Pursuant to cl 5.10(4) of SLEP, the parties are satisfied that the impacts on the Heritage Conservation Area are acceptable in accordance with cl 6.21C of SLEP 2012, because the Applicant has amended its plans to design the streetscape in conformity with the ‘Cleveland Garden’ Heritage Conservation Area, including:

1. Retaining the forward hipped roof element;

2. Partial retention of the existing terraces fronting Elizabeth Street;

3. Further setback of balconies from Elizabeth Street which are now recessed behind the front building line.

Relevant heritage conditions of consent in Annexure A are (2), (3), (12), (13), (15), (17), (19), (20) and (21).

17. Acid Sulfate Soils: The Site is mapped as Class 5 Acid Sulfate Soil pursuant to cl 7.14 of SLEP.

18. Consideration has been given as to whether the Site is contaminated, as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Applicant filed a Detailed Site Investigation Report by Australian Geotechnical Pty Ltd dated 5 November 2020 on 16 June 2022. This was a Stage 2/Detailed Site Investigation Report following on from the Stage 1/Detailed Site Investigation Report prepared by JK Environments Pty Ltd dated 6 December 2019. The Stage 2: Detailed Site Investigation Report concluded:

“The results of the chemical analysis indicate that the site does ot present a risk to human health based on information collected within this report. The site is suitable for the proposed construction of a multi-storey, mixed use development with a commercial suite on the ground floor.

……”

Council has also imposed condition (70) in Annexure A that Council is to be “notified of any new information which comes to light during remediation, demolition or constructions works which has the potential to alter previous conclusions about the contamination”.

19. A BASIX Certificate No. 1049373M_03 dated 01 June 2022 has been provided in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) and Schedule 1 of the EPA Regulation, and is further referenced in the condition of consent (39) in Appendix A.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by ss 34(3) and 39(2) of the LEC Act and in applying s 4.15(1) of the EPA Act because:

1. The development application D/2020/20 was prepared in accordance with cl 50 of the EPA Regulation, and signed by the owner of the land in accordance with cl 49 of the EPA Regulation.

2. I note the Council, as the consent authority, consented to the amended plans and reports in accordance with cl 55(1) of the EPA Regulation. The plans were amended to provide a better planning outcome as follows:

1. Partial retention of the existing terraces fronting Elizabeth Street;

2. Removal of the basement level beneath the retained terraces;

3. Further setback the balconies from Elizabeth Street which are now recessed behind the front building line;

4. Filling of the void space adjacent to the light well on the northern side of the 507-515 Elizabeth (which complies with the desired future character of the area);

5. Deletion of unit 8 on level 6, and replacement thereof with a communal terrace.

3. I also find that the amended plans demonstrate that the development is substantially the same as that which was filed in the Class 1 Application.

4. The appeal was lodged in accordance with the extended time for filing an appeal in accordance with the Covid-19 Amendments.

5. D/2020/20 complies with the objectives of the Zone B4 Mixed Use.

6. I uphold the cl 4.6 Request pursuant to SLEP 2012 as it is well founded as a result of the following:

1. For the reasons outlined in the cl 4.6 request, I am satisfied that D/2020/20 is consistent with the relevant objectives of the development standard and that there are sufficient environmental planning grounds to support the variation proposed.

2. The height of DA/2020/20 is compatible with the height and scale of the surrounding and nearby development, and the exceedance of the height of development standard will not result in any adverse amenity impacts.

3. I accept that DA/2020/20 will be in the public interest because it is consistent with the objectives of Zone B4 despite a breach of cl 4.3 of SLEP 2012.

4. For the above reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose.

5. The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the height standard does not raise any matter of significance for State or regional environmental planning given the nature of the development, and there is no public benefit in maintaining the standard on the facts of this case.

6. In upholding the cl 4.6 appeal I have considered that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), in accordance with Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 where Preston, CJ of the Land and Environment Court of NSW, sat on the bench of the Court of Appeal and affirmed the interpretation provided by Basten JA in Al Maha Pty Ltd v Huajun Investments Pty Limited (2018) 233 LGERA 170; [2018] NSWCA 245 at par [21]-[24], and himself in Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 at par [74]-[81].

7. D/2020/20 is compatible with the development within the ‘Cleveland Gardens Heritage Conservation Area’ as required by cl 6.21C of SLEP 2012.

8. Although the soils are mapped as Class 5 Acid Sulfate Soils pursuant to cl 7.14 of SLEP 2012, it is not a relevant consideration as the land is at 32 AHD, and not at or below 7 AHD which is the relevant consideration for assessment. The basement will also be above the water table.

9. The Site is fit for human health as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

10. The BASIX Certificate as provided complies with the BASIX SEPP and Schedule 1 of the EPA Regulation.

11. D/2020/20 demonstrates design excellence in accordance with cl 6.21C of SLEP 2012.

12. The Council has considered the submissions made by the objectors, both from the first notification and the second notification. On 16 March 2022 I heard from the tenants of the 2 studio apartments on Elizabeth Street, and in their company inspected those units. I have also perused and considered all the submissions.

11. 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.

12. The Court orders that:

1. The appeal is upheld.

2. The Clause 4.6 Request by Urban Perspectives filed 16 June 2022 is upheld.

3. Development Application D/2020/20 for the demolition of the existing buildings and construction of a new seven (7) storey mixed use development comprising one basement level, ground floor retail and seven residential apartments above at 503-505 Elizabeth Street Surrey Hills is determined by the grant of consent subject to the conditions set out in Annexure A.

4. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $5,000 within 28 days.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (394650, pdf)

**********

Decision last updated: 30 June 2022