Thiessen Architects Pty Ltd v Sydney City Council

[2004] NSWLEC 693

Land and Environment Court

of New South Wales

CITATION:	Thiessen Architects Pty Ltd v Sydney City Council [2004] NSWLEC 693
PARTIES:	APPLICANT Thiessen Architects Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10728 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification of Court issued consent Modifications to upper level floors of the building and to plant room
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96AA
CASES CITED:	Thiessen Architects v Council of the City of Sydney [2004] NSWLEC 395
DATES OF HEARING:	22 November 2004
EX TEMPORE JUDGMENT DATE :	11/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Strati, solicitor Avendra Singh, Strati & Kam Lawyers RESPONDENT Mr A Pickles, barrister INSTRUCTED BY Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

22 November 2004

10728 of 1999 Thiessen Architedcts Pty Ltd v

Sydney City Council

JUDGMENT

1 This is an appeal pursuant to s 96AA of the Environmental Planning and Assessment Act following the refusal of an earlier s 96 modification application by (then) Commissioner Roseth on 29 May 2002 and a subsequent decision by me earlier this year to refuse an application pursuant to s 96AA of the Act to amend further the original consent: see Thiessen Architects v Council of the City of Sydney [2004] NSWLEC 395.

2 The application which now comes to me contains modification to the upper level floors of the building and to the plant room. It is agreed between the parties that the solar impact on the adjacent property at 281 Elizabeth Street, which runs from Elizabeth Street to Castlereagh Street to the south of the subject site is eliminated compared to the impact which arises from the approved building. The impacts which had led me in my earlier decision to refuse the s 96AA modification application have been ameliorated and will not be incurred as a result of this modification application.

3 As a consequence, the objection which is lodged by Ms Quinlan, chairperson of the Regency Hyde Park Owners Corporation, objecting to the modification application on the basis of the impact on her building is unfounded, there being no additional impact beyond that of the already approved plans on the solar access to any of the apartments in the Regency Hyde Park to the south. As a consequence, I am satisfied, as the council does not object to the apparently modest increase in floor space ratio that would result from this application, that this application should be granted.

4 However there is one matter which is in contention between the parties and that is the imposition of a condition originally proposed by the council to be a condition which would set out a floor space area of the development and then require that the floor space ratio of the proposal should not exceed a floor space ratio calculated by reference to that floor space area.

5 I put to Mr Pickles, counsel for the respondent, that there was a difference between seeking information as to the floor space ratio and its incorporation in what amounts to a prohibition by condition. Mr Pickles indicated to me that his instructions were that the intention of the council was to seek to have incorporated in the conditions of consent what amounts to a notation that the floor space ratio is a particular ratio calculated by having regard to the floor space area of the development. The incorporation of this condition is opposed by Mr Strati, solicitor for the applicant.

6 Although this is perhaps in the overall scheme of things a comparatively minor matter, I am satisfied, given the state of modern architectural drafting technology, that it is not an unreasonable burden on the applicant to require such information to be obtained.

7 At least for this Court, it would provide certainty in the nature of the increase of the floor space ratio. Should the matter come back to the Court, in future, pursuant to s 96AA or if it be dealt with by the council pursuant to that section, there would be certainty as to the information if there were any further increases proposed to the floor space ratio.

8 I therefore propose to uphold the appeal, but it is subject to the conditions being revised in a fashion that would incorporate in condition 8 a notation of the present floor space ratio and its mode of calculation by reference to the floor space area of the development, together with the remaining conditions.

9 As a consequence of the alterations to condition 1 to the original conditions, the proposed condition 2(a) will not be required and the other conditions in 2 can be revised. That will require the council lodging with me a revised set of conditions incorporating a revised condition 1, a modified condition 2, noted I think perhaps in more correct terms with clause 2(a) being noted as deleted rather than simply being deleted and renumbering the remaining elements of that condition, together with a wording for condition 8 to be settled between the parties that will turn 8(a) into a notation rather than a prohibition.

Tim Moore
Commissioner of the Court