TM Elizabeth Bay 2 Pty Ltd v Council of the City of Sydney

[2024] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation:

TM Elizabeth Bay 2 Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1235

Hearing dates:

Conciliation conference on 13 March 2024

Date of orders:

7 May 2024

Decision date:

07 May 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $10,000 within 28 days from the date of these orders being made.

(2) The Applicant's written request under cl 4.6 of the Sydney Local Environmental Plan 2012 (the SLEP) seeking a contravention of the development standard for height of buildings set out in cl 4.3(2) of the SLEP is upheld.

(3) The appeal is upheld.

(4) Development application D/2023/375 for the demolition of the existing structures and construction of a residential flat building with associated landscaping, basement levels and extension and augmentation of infrastructure at 4-4a Barncleuth Square, Elizabeth Bay is determined by the grant of consent, subject to the conditions set out in Annexure B to this agreement.

Catchwords:

DEVELOPMENT APPLICATION: residential flat building in R1 General Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 37, 38, Dictionary

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

State Environmental Planning Policy Amendment (Housing) 2023, Sch 7A, s 8

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.21C, 7.5, 7.14, 7.19

Texts Cited:

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

Category:

Principal judgment

Parties:

TM Elizabeth Bay 2 Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
J Mort (Solicitor) (Respondent)

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

File Number(s):

2023/322561

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Development is proposed on land at the intersection of Barncleuth Square and Ward Avenue in Elizabeth Bay. An existing residential flat building that stands on the site proposed for development is proposed to be demolished, and a new residential flat building erected in its place.

2. To this end, Development Application No D/2023/375 was lodged by the Applicant, TM Elizabeth Bay 2 Pty Ltd, with the Council of the City of Sydney (the Respondent) on 5 May 2023, seeking consent for demolition of existing structures and construction of a residential flat building with associated landscaping and extension and augmentation of infrastructure on land legally described as Lot 4 in DP861176, Lots 1-18 and Lots 20-22 in Strata Plan 2191 and Lot 23 in Strata Plan 15312.

3. The Respondent notified the development application between 15 May 2023 and 13 June 2023, in response to which 21 submissions were made objecting to the proposed development and 4 submissions were made in support of the proposed development.

4. On 11 October 2023, as the development application was not otherwise determined, the Applicant filed an appeal with the Court against the deemed refusal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. 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 13 March 2024. I presided over the conciliation conference.

6. 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, subject to certain agreed amendments of the architectural plans and other documents. This agreement involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

7. The agreement required the amendment of architectural plans and other documents, for which purpose I granted an adjournment on two occasions. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 29 April 2024.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [44]. I am satisfied for the reasons that follow.

10. The site is located within the R1 General Residential zone, according to the Sydney Local Environmental Plan 2012 (SLEP) in which residential flat buildings are permitted with consent where consistent with the objectives for development in the R1 zone, that are as follows:

•  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.

11. The proposed development exceeds the maximum height of building development standard of 18m, at cl 4.3 of the SLEP, which is described in terms of Relative Levels on the Height of Buildings Map at cl 4.3(2).

12. A written request, prepared by Ethos Urban in accordance with cl 4.6 of the SLEP and dated 17 April 2024 describes the exceedance as 1.9m, which is predominantly caused by lift access and shade structures to the rooftop level comprising communal open space.

13. The written request asserts that compliance with the height standard is unreasonable or unnecessary as the objectives of the height standard are achieved, notwithstanding the non compliance.

14. The relevant objectives of the height standard in cl 4.3 are as follows:

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

(a)  to ensure the height of development is appropriate to the condition of the site and its context,

(b)  to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c)  to promote the sharing of views outside Central Sydney,

(d)  to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,

…

15. I am satisfied the objectives are achieved, notwithstanding the non compliance, for the reasons set out in the written request, summarised as follows:

1. When the context formed by surrounding development is properly understood, the site is within a highly urbanised area with an irregular pattern of heights, and height controls, varying from 12-27m across the block in which the site is located. Nevertheless, the proposal draws from its immediate neighbour to the north, and provides an appropriate transition in heights from Central Sydney to adjoining areas such as Elizabeth Bay.

2. The cause of the exceedance, which is the communal open space on the rooftop, is also appropriate to the site’s dense urban context; being located where the quantum of area sought for such a purpose by the objective 3D-1 of the Apartment Design Guide (ADG) can be achieved.

3. The height of the development substantially aligns to the height of the adjoining building at 2 Ward Avenue and, on the basis of the assessment in the Heritage Context Analysis, is sympathetic to the heritage items at 4 Ward Avenue and 6-8 Barncleuth Square.

4. The proposal does not obstruct significant views from surrounding properties when identified view corridors in the area are considered.

16. I am also satisfied that there are sufficient environmental planning grounds to justify the contravening of the height standard that may be summarised to include the minor nature of the exceedance, of around 10%, located centrally on the site, by structures serving rooftop communal open space. The exceedance does not result in adverse visual or environmental impacts, and is within the floor space ratio standard applicable to the site.

17. Likewise, I accept and am satisfied that the development as proposed is in the public interest because it is consistent with the objectives of the R1 zone, and the height standard. I do not understand there to be any reasons that concurrence under cl 4.6(5) of the SLEP should not be granted and so I am satisfied that the request to vary the height standard should be upheld.

18. The proposed development complies with the maximum floor space ratio of 3:1 permitted on the site, according to the relevant map at cl 4.4(2) of the SLEP.

19. While the site itself is not identified as an item of heritage significance, it is located within the Elizabeth and Rushcutters Bays Conservation Area, adjoins 6-8 Barncleuth Square that is identified for its local heritage significance, and is in the vicinity of a number of other heritage items. As such, the provisions of cl 5.10 of the SLEP apply. The development application was supported by a Heritage Context Commentary, prepared by GBA Heritage dated 28 February 2024, complementing the Heritage Context Analysis of the same author dated 6 December 2023, that I have considered. On the basis of the conclusions of the foregoing reports by GBA Heritage, I accept the development sits comfortably in the Elizabeth and Rushcutters Bays Conservation Area.

20. Clause 5.21 of the SLEP requires the consent authority, or the Court on appeal, to be satisfied in respect of flood planning. On the basis of the assessment at p 6 of the ‘Civil Engineering Return Brief’ prepared by Intrax Projects dated 30 January 2024, I am satisfied the site is not within the flood planning area.

21. As the proposal is for a new building to which the SLEP applies, cl 6.21C of the SLEP requires that development consent not be granted unless, in the opinion of the consent authority, or the Court on appeal, the proposed development exhibits design excellence (subcl (1)), by reference to those matters at subcl (2). On the basis of the Design Excellence Response prepared by SJB, which addresses those matters to which regard must be had at cl 6.21C(2) of the SLEP, I have formed an opinion that the proposed development exhibits design excellence. I note the Respondent has formed the same view, at Annexure A of this decision.

22. Car parking rates are dealt with by cl 7.5 of the SLEP which identifies the site as ‘category B’. As such, the maximum number of car parking spaces for the proposed development, when rounded up, is 11 with which the proposal complies.

23. The site is identified as Class 5 Acid Sulfate Soils (ASS) on the relevant map at cl 7.14(2) of the SLEP that is within 500m of Class 2 ASS, however according to the ‘Preliminary Site Investigation Addendum-Acid Sulfate Soil’, prepared by WSP dated 7 March 2024 ,the proposal does not comprise works by which the watertable is likely to be lowered below 1m Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land.

24. The proposal comprises demolition of the existing building on the site. As such, cl 7.19 operates to constrain the grant of consent unless the Court, in the circumstances of this case, is satisfied that any land affected by the demolition will be redeveloped and that adequate measures will be taken to assist in mitigating any adverse visual impacts that may arise as a result of the demolition with regard to the streetscape and any special character area. On the basis the documentation comprising the development application, as amended, I am so satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

25. As the site is within the Sydney Harbour Catchment, Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site.

26. On the basis of the Civil Engineering Return Brief prepared by Intrax Projects dated 30 January 2024, I am satisfied that the proposal ensures the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial; and the impact on water flow in a natural waterbody will be minimised, in accordance with s 6.6 of the Biodiversity SEPP, and that the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development. Nor will the development have a direct, indirect or cumulative adverse impact on aquatic reserves, consistent with s 6.7 of the Biodiversity SEPP. The proposal does not comprise clearing of riparian vegetation, does not abut a natural waterbody and will not impose sedimentation on a natural waterbody, nor any adverse impact on wetlands or rainforest of any kind.

27. As stated at [20], the site is not flood liable land, and so the provisions of s 6.8 do not apply, and as there is no impact on public access to recreational land uses or foreshores by the proposal, s 6.9 does not apply either.

State Environmental Planning Policy (Transport and Infrastructure)

28. I note that the proposed development has been referred to the electricity supply authority in accordance with s 2.48(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP), and that responses confirm Ausgrid does not object to the proposed development.

State environmental planning policy (Housing) 2021

29. As the proposal is for residential apartment development, the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) would apply but for its repeal by State Environmental Planning Policy (Housing) 2021 (Housing SEPP) on 14 December 2023.

30. At the time of the conciliation conference, the repeal of SEPP 65 was not saved by the provision at Sch 7A(2) of the Housing SEPP, as the repeal was given effect by State Environmental Planning Policy Amendment (Housing) 2023 (Amending provision), that does not contain a savings provision in the form that it appears in Sch 7A of the Housing SEPP.

31. Shortly after the conciliation conference, but before judgment was delivered, Sch 7A of the Housing SEPP was amended yet again to insert a provision at Sch 7A, s 8(2A) that sets aside the kinds of applications to which the Amending provisions did not apply, with the effect that Ch 4 of the Housing SEPP applies to a development application made, but not determined, on or before 14 December 2023.

32. The parties agree that where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

33. The statement must verify the designer designed, or directed the design of the development, and explain how the development addresses the design principles, and objectives in Parts 3 and 4 of the ADG.

34. Section 147 of the Housing SEPP requires the consent authority, or the Court on appeal, to consider certain matters such as the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9, and the ADG.

35. Section 148 of the Housing SEPP sets out non-discretionary standards that I am satisfied are achieved.

36. I am satisfied that the statement provided by Mr Adam Haddow (Reg No 7188) dated 21 March 2024 is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the ADG.

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

37. The application is accompanied by a BASIX certificate (Cert No 1368178M_03 dated 11 April 2024) prepared by Credwell Energy Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation.

38. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the amended development application from the provisions of Sustainable Buildings SEPP.

Contamination

39. Consistent with the terms of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) I have given consideration to the potential contamination of the site.

40. The Applicant relies upon a preliminary site investigation prepared by WSP dated 29 November 2023 that concludes the land will be suitable (after remediation) for the purpose for which the development is proposed to be carried out.

Conclusion

41. 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.

42. 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.

43. The Court notes that:

1. Pursuant to section 37(1) of the Environmental Planning and Assessment Regulation 2021 the Applicant applied to the Respondent consent authority for an amendment to Development Application No D/2023/375, in the following respects:

1. the inclusion of architectural drawings prepared by SJB Architects in replacement of corresponding earlier drawings as follows:

Drawing No.	Rev.	Title	Date
DA-0000	34	Cover	19 April 2024
DA-0101	34	Site Analysis	19 April 2024
DA-0102	34	Site Plan	19 April 2024
DA-0252	33	Demolition Plan	15 April 2024
DA-1001	34	Floor Plan Basement 2	19 April 2024
DA-1002	34	Floor Plan Basement 1	19 April 2024
DA-1003	35	Floor Plan Ground	19 April 2024
DA-1004	34	Floor Plan Level 1	19 April 2024
DA-1005	33	Floor Plan Level 2	19 April 2024
DA-1006	34	Floor Plan Level 3	19 April 2024
DA-1007	33	Floor Plan Level 4	15 April 2024
DA-1008	34	Roof Plan	19 April 2024
DA-1401	34	Elevations – North & East	19 April 2024
DA-1402	36	Elevations – South & West	22 April 2024
DA-1403	36	Long Elevation	22 April 2024
DA-1404	3	Long Elevation – Ward Ave. 2	15 April 2024
DA-1405	6	Detail Elevations	22 April 2024
DA-1501	34	Sections	19 April 2024
DA-1502	18	Sections	19 April 2024
DA-2001	34	Exterior Finishes Schedule	19 April 2024
DA-2002	34	Photomontage 1	19 April 2024
DA-2003	34	Photomontage 2	19 April 2024
DA-2004	34	Photomontage 3	19 April 2024
DA-2005	34	Photomontage 4	19 April 2024
DA-4001	34	Indicative Residential Layout	19 April 2024
DA-4002	34	Adaptable Apartment Layout	19 April 2024
DA-8000	20	Setback Diagrams	19 April 2024
DA-8001	34	Solar and Cross Ventilation Analysis	19 April 2024
DA-8002	34	Shadow Diagrams – Winter Solstice – Sheet 01	19 April 2024
DA-8003	34	Shadow Diagrams – Winter Solstice – Sheet 02	19 April 2024
DA-8004	34	Shadow Diagrams – Winter Solstice – Sheet 03	19 April 2024
DA-8005	34	Height Plane – Sheet 01	19 April 2024
DA-8006	22	Height Plane – Sheet 02	19 April 2024
DA-8007	22	Height Plane – Sheet 03	19 April 2024
DA-8008	22	Height Plane – Sheet 04	19 April 2024
DA-8009	32	Area Plan – Landscape + Deep Soil	19 April 2024
DA-8010	34	Area Plans GFA	19 April 2024
DA-8011	24	Winter – Views From Sun (9.00 – 11.30am) - Existing	19 April 2024
DA-8012	24	Winter – Views From Sun (12.00 – 1.45pm) - Existing	19 April 2024
DA-8013	24	Winter – Views From Sun (2.00pm – 3.00pm) - Existing	19 April 2024
DA-8014	24	Winter – Views From Sun (9.00 – 11.30am) - Proposed	19 April 2024
DA-8015	24	Winter – Views From Sun (12.00 – 1.45pm) - Proposed	19 April 2024
DA-8016	24	Winter – Views From Sun (2.00 – 3.00pm) - Proposed	19 April 2024
DA-8017	7	Autumn – Views From Sun (9.00 – 11.30am) - Proposed	19 April 2024
DA-8018	7	Autumn – Views From Sun (12.00 – 1.45pm) - Proposed	19 April 2024
DA-8019	7	Autumn – Views From Sun (2.00 – 3.00pm) - Proposed	19 April 2024
DA-8020	17	Sunlight Access (9.00 – 11.30am) - Proposed	19 April 2024
DA-8021	17	Sunlight Access (12.00 – 1.45pm) - Proposed	19 April 2024
DA-8022	17	Sunlight Access (2.00 – 3.00pm) - Proposed	19 April 2024
DA-8025	8	Elevational Shadow Analysis – 4 Ward Ave	19 April 2024
DA-8026	8	Elevational Shadow Analysis – 4 Ward Ave	19 April 2024
DA-8027	2	Elevational Shadow Analysis – March	5 April 2024
DA-8028	2	Elevational Shadow Analysis – March	5 April 2024
DA-8030	20	Context Analysis – Building Storeys	19 April 2024
DA-8040	5	Area Plans TFA	22 April 2024

2. the inclusion of the architectural comparison document;

3. the inclusion of the schedule of amendments prepared by SJB Architects dated 21 March 2024;

4. the inclusion of the revised document titled ‘SEPP 65 Design Statement’ prepared by SJB Architects dated 21 March 2024;

5. the inclusion of BASIX Certificate 1368178M_03 prepared by Credwell Energy dated 11 April 2024 in replacement of the earlier BASIX certificate;

6. the inclusion of the ‘NCC2019 NatHERS Thermal Performance Specification – Elizabeth Bay’ in replacement of the earlier corresponding document;

7. the inclusion of NatHERS Certificate No 0008545330 prepared by Credwell Energy dated 11 April 2024 in replacement of the earlier NatHERS certificate;

8. the inclusion of NatHERS stamped architectural drawings (stamped 11 April 2024) prepared by SJB Architects in replacement of corresponding earlier NatHERS stamped drawings as follows:

Drawing No.	Rev.	Title	Date
DA-0000	32	Cover	10 April 2024
DA-0101	32	Site Analysis	10 April 2024
DA-0102	32	Site Plan	10 April 2024
DA-0252	32	Demolition Plan	10 April 2024
DA-1001	32	Floor Plan Basement 2	10 April 2024
DA-1002	32	Floor Plan Basement 1	10 April 2024
DA-1003	31	Floor Plan Ground	10 April 2024
DA-1004	32	Floor Plan Level 1	10 April 2024
DA-1005	32	Floor Plan Level 2	10 April 2024
DA-1006	32	Floor Plan Level 3	10 April 2024
DA-1007	UR	Floor Plan Level 4	N/A
DA-1008	32	Roof Plan	10 April 2024
DA-1401	32	Elevations – North & East	10 April 2024
DA-1402	32	Elevations – South & West	10 April 2024
DA-1403	32	Long Elevation	10 April 2024
DA-1405	3	Detail Elevations	10 April 2024
DA-1501	32	Sections	10 April 2024
DA-1502	16	Sections	10 April 2024
DA-2001	32	Exterior Finishes Schedule	10 April 2024
DA-2002	32	Photomontage 1	10 April 2024
DA-2003	32	Photomontage 2	10 April 2024
DA-2004	32	Photomontage 3	10 April 2024
DA-2005	32	Photomontage 4	10 April 2024
DA-4001	32	Indicative Residential Layout	10 April 2024
DA-4002	32	Adaptable Apartment Layout	10 April 2024
DA-8000	18	Setback Diagrams	10 April 2024
DA-8001	32	Solar and Cross Ventilation Analysis	10 April 2024
DA-8002	32	Shadow Diagrams – Winter Solstice – Sheet 01	10 April 2024
DA-8003	32	Shadow Diagrams – Winter Solstice – Sheet 02	10 April 2024
DA-8004	32	Shadow Diagrams – Winter Solstice – Sheet 03	10 April 2024
DA-8005	32	Height Plane – Sheet 01	10 April 2024
DA-8006	20	Height Plane – Sheet 02	10 April 2024
DA-8007	20	Height Plane – Sheet 03	10 April 2024
DA-8008	20	Height Plane – Sheet 04	10 April 2024
DA-8009	32	Area Plan – Landscape + Deep Soil	10 April 2024
DA-8010	32	Area Plans GFA	10 April 2024
DA-8011	22	Winter – Views From Sun (9.00 – 11.30am) - Existing	10 April 2024
DA-8012	22	Winter – Views From Sun (12.00 – 1.45pm) - Existing	10 April 2024
DA-8013	22	Winter – Views From Sun (2.00pm – 3.00pm) - Existing	10 April 2024
DA-8014	22	Winter – Views From Sun (9.00 – 11.30am) - Proposed	10 April 2024
DA-8015	22	Winter – Views From Sun (12.00 – 1.45pm) - Proposed	10 April 2024
DA-8016	22	Winter – Views From Sun (2.00 – 3.00pm) - Proposed	10 April 2024
DA-8017	5	Autumn – Views From Sun (9.00 – 11.30am) - Proposed	10 April 2024
DA-8018	5	Autumn – Views From Sun (12.00 – 1.45pm) - Proposed	10 April 2024
DA-8019	5	Autumn – Views From Sun (2.00 – 3.00pm) - Proposed	10 April 2024
DA-8020	15	Sunlight Access (9.00 – 11.30am) - Proposed	10 April 2024
DA-8021	15	Sunlight Access (12.00 – 1.45pm) - Proposed	10 April 2024
DA-8022	15	Sunlight Access (2.00 – 3.00pm) - Proposed	10 April 2024
DA-8025	6	Elevational Shadow Analysis – 4 Ward Ave	10 April 2024
DA-8026	6	Elevational Shadow Analysis – 4 Ward Ave	10 April 2024
DA-8030	18	Context Analysis – Building Storeys	10 April 2024
DA-8040	3	Area Plans TFA	10 April 2024

9. the inclusion of revised landscape drawings prepared by Black Beetle in replacement of corresponding earlier drawings as follows:

Drawing No.	Rev.	Title	Date
LALP01/07	07	Landscape Plan – Ground Level	16 April 2024
LALP02/07	07	Landscape Plan – Rooftop	16 April 2024
LALP03/08	08	Tree Canopy Calculation/Landscape Area/Legend/Notes/Plant Schedule	16 April 2024
LALP04/05	05	Details and Sections	16 April 2024
LALP05/01	01	Landscape Plan – Level 04	16 April 2024

10. the inclusion of revised civil engineering drawings prepared by Intrax Projects in replacement of corresponding earlier drawings as follows:

Drawing No.	Issue	Title	Date
C-0000	07	Cover Sheet	21 March 2024
C-0001	07	General Notes	21 March 2024
C-0002	07	General Arrangement Plan and Legend	21 March 2024
C-1001	07	Sediment and Erosion Control Plan	21 March 2024
C-1011	07	Sediment and Erosion Control Details and Notes	21 March 2024
C-3011	07	Driveway Plan and Longitudinal Section	21 March 2024
C-3101	04	Public Domain and Civil Works Plan	21 March 2024
C-3301	03	Control Line and Setout Plan	15 March 2024
C-3401	03	Longitudinal Sections Sheet 01 of 03	21 March 2024
C-3402	03	Longitudinal Sections Sheet 02 of 03	21 March 2024
C-3403	04	Longitudinal Sections Sheet 03 of 03	21 March 2024
C-3411	03	Cross Sections Sheet 01 of 02	21 March 2024
C-3412	03	Cross Sections Sheet 02 of 02	21 March 2024
C-3811	03	Council Standard Details	21 March 2024
C-4001	07	Stormwater Management Plan	21 March 2024
C-4101	07	Stormwater Catchment Plan	21 March 2024
C-4201	07	Stormwater Longitudinal Sections	21 March 2024
C-4301	07	Stormwater Management Details Sheet 01 of 02	21 March 2024
C-4302	07	Stormwater Management Details Sheet 02 of 02	21 March 2024
C-4501	07	MUSIC Model and Water Quality Details	21 March 2024

11. the inclusion of the ‘Civil Engineering Statement’ prepared by Intrax Projects dated 15 March 2024;

12. the inclusion of the ‘Civil Engineering Return Brief’ prepared by Intrax Projects dated 30 January 2024;

13. the inclusion of the structural engineers report prepared by Mance Arraj dated 12 March 2024;

14. the inclusion of structural engineering drawing prepared by Mance Arraj as follows:

Drawing No.	Issue	Title	Date
S010	P3	Shoring Plan	20 March 2024

15. the inclusion of the letter titled ‘Re: 4 Barncleuth Square Elizabeth Bay, Natural Ventilation of Designated Apartments’ prepared by Integrated Group Services dated 10 April 2024;

16. the inclusion of the memorandum titled ‘4-4A Barncleuth Square, Elizabeth Bay – Amended Acoustic Review of soFAC Contentions 6n & 6o’ prepared by PWNA dated 18 April 2024;

17. the inclusion of the memorandum titled ‘4-4A Barncleuth Square, Elizabeth Bay – Amended Acoustic Review of soFAC Contentions 6n & 6o’ prepared by PWNA dated 1 December 2023;

18. the inclusion of the letter titled ‘4-4A Barncleuth Square, Elizabeth Bay, Resident/Tenant Car Parking Compliance, Access and Parking Statement’ prepared by Transport Strategies dated 15 April 2024;

19. the inclusion of the preliminary site investigation prepared by WSP, Rev B, dated 29 November 2023 in replacement of the earlier preliminary site investigation;

20. the inclusion of the ‘PSI Addendum-Acid Sulfate Soil Letter-4-4A Barncleuth Square, Elizabeth Bay NSW’ prepared by WSP dated 7 March 2024;

21. the inclusion of the letter titled ‘Geotechnical Consulting Services – Proposed Residential Development – 4-4A Barncleuth Square, Elizabeth Bay, NSW’ prepared by JK Geotechnics dated 28 November 2023;

22. the inclusion of the preliminary context analysis prepared by GBA Heritage, revision B, dated 6 December 2023;

23. the inclusion of the document titled ‘Heritage Commentary – Amended Development Proposal – 4-4A Barncleuth Sq, Elizabeth Bay’ prepared by GBA Heritage dated 28 February 2024;

24. the inclusion of the following documents in relation to landowner’s consent:

1. landowner consent document in relation to the Applicant, TM Elizabeth Bay 2 Pty Ltd;

2. compiled landowner consent documents in relation to Lots 1, 2, 4, 5, 6, 7, 8, 10, 12, 13, 14, 15 and 17 in SP2191;

3. compiled landowner consent documents in relation to Lots 3, 20 and 21 in SP2191;

4. letter of consent in relation to Lot 9 in SP2191;

5. letter of consent in relation to Lot 18 in SP2191;

6. additional landowner consent document (signing page) in relation to Lot 14 in SP2191;

7. additional letter of consent in relation to Lot 11 and 16 in SP2191;

8. letter of consent in relation to Lot 22 in SP2191;

9. additional landowner consent document (signing page) in relation to Lot 22 in SP2191;

10. letter of consent in relation to Lot 23 in SP15312;

11. letter of consent tin relation to common property singed by strata manager;

12. current company extract for Kiss Family Property Pty Ltd;

13. current company extract for Sana NSW Pty Ltd;

25. the inclusion of the clause 4.6 request for height prepared by Ethos Urban dated 17 April 2024;

26. the inclusion of the preliminary public art plan prepared by Milne Stonehouse dated March 2024; and

27. the inclusion of the document titled ‘RE: 4-4a Barncleuth Sq, Elizabeth Bay – SOFAC Response (Waste Management) dated 27 November 2023,

(collectively, the amended application).

2. Pursuant to section 38(1) of the EPA Regulation the Respondent consent authority has approved the application to amend the Development Application.

3. The Court notes that the Respondent will register the development consent on the NSW Planning Portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of determination.

4. The Court notes the Respondent’s reasons for agreement to the terms of the decision are set out in Annexure A.

Order

44. The Court orders that:

1. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $10,000 within 28 days from the date of these orders being made.

2. The Applicant's written request under cl 4.6 of the Sydney Local Environmental Plan 2012 (the SLEP) seeking a contravention of the development standard for height of buildings set out in cl 4.3(2) of the SLEP is upheld.

3. The appeal is upheld.

4. Development application D/2023/375 for the demolition of the existing structures and construction of a residential flat building with associated landscaping, basement levels and extension and augmentation of infrastructure at 4-4a Barncleuth Square, Elizabeth Bay is determined by the grant of consent, subject to the conditions set out in Annexure B to this agreement.

……………………

T Horton

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 07 May 2024