Xinte Investments Pty Ltd v The Council of the City of Sydney

[2021] NSWLEC 1620

Land and Environment Court

New South Wales

Medium Neutral Citation:

Xinte Investments Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1620

Hearing dates:

Conciliation conference on 30 July, 13 September 2021

Date of orders:

22 October 2021

Decision date:

22 October 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. D/2020/461, for consent to demolish existing structures and construction of a three storey boarding house containing 19-rooms, basement car park, tree removal and associated landscaping works and civil works on land legally described as Lot 1 in DP91298, known as 75-77 Kellick Street, Waterloo, is approved subject to the conditions at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 29,30, 30A

State Environmental Planning Policy (Infrastructure) 2007, cl 45

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 10

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Sydney Local Environmental Plan 2012, cll 2.7, 5.10, 6.21, 7.14, 7.19

Category:

Principal judgment

Parties:

Xinte Investments Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2021/62077

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2020/461 (DA) by the Council of the City of Sydney.

2. The DA seeks consent to demolish existing structures and construct a three-storey boarding house containing 19-rooms, basement car park, tree removal and associated landscaping works and civil works at 75-77 Kellick Street Waterloo, legally described as Lot 1 in DP 91298 (site).

Amendments to the development application

3. The Court notes the particulars of certain amendments to the DA as follows:

1. That the Applicant has amended the DA with the consent of the Council of the City of Sydney to incorporate the amended plans and documents referred to in Annexure A (Amended DA).

2. That the Amended DA has been lodged on the NSW planning portal on 28 September 2021.

3. That the Applicant has subsequently filed the Amended DA with the Court on 30 September 2021.

Conciliation and agreement reached

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 30 July and 13 September 2021, and at which I presided. After more time was given, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. This decision involved the Court upholding the appeal and granting development consent subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional pre-requisites

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. On 1 October 2021, the parties provided an agreed “Statement of Reasons for Upholding the Appeal” which outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. An update was provided on 7 October 2021. Regarding jurisdiction, and noting this advice, I am satisfied of the following:

1. With regard to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) which applies to the site under cl 26:

1. The proposal relies on cl 29, which provides for what is in effect a 0.5:1 floor space ratio (FSR) bonus to the development. This bonus applies as the site is within a zone in which residential flat buildings are permitted and the land does not contain a heritage item.

2. I accept the advice of the parties that the development standards contained at cl 30 of SEPPARH have been complied with, and relevantly that:

1. A communal living room would be provided;

2. No boarding room would have a gross floor area of more than 25 m²;

3. No boarding room would be occupied by more than 2 lodgers;

4. Bathroom and kitchen facilities would be provided within each boarding room;

5. A boarding room would be provided for an on-site manager;

6. The requirements of cl 30(1)(g) would not be breached as zone B4 Mixed Use permits boarding house use; and

7. Four motorbike and nine bicycle parking spaces would be provided, meeting the requirement for at least one bicycle and one motorbike parking space for each five rooms in the development.

3. Clause 30A requires that a consent authority not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The parties agree that the amended application is now compatible with the surrounding locality in terms of height, bulk and façade. I have taken the requirements of cl 30A into consideration.

2. With regard to Sydney Local Environmental Plan 2012 (SLEP), which applies to the site:

1. Boarding houses are permissible with consent in the applicable B4 Mixed Use zone, and demolition is permissible pursuant to cl 2.7. I note the B4 Mixed Use zone objectives 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.

2. I accept the advice of the parties that the development standards under SLEP have been complied with. As mentioned above, the FSR bonus, under cl 29 of SEPPARH results in a maximum permitted FSR of 1.45:1. The parties agree that the proposed FSR measures 1.45:1.

3. The site is located within the Waterloo Heritage Conversation Area (HCA). Clause 5.10(4) of SLEP requires that before granting consent in respect of a proposal in a HCA, the consent authority must consider the effect of the proposed development on the heritage significance of this HCA. The parties agree that the DA, as amended, will not affect the Waterloo HCA. I accept this advice of the parties and as such have considered the effect of the proposed development on the heritage significance of the HCA of concern. The requirements of cl 5.10(4) have been met.

4. Under cl 6.21 of SLEP consent must not be granted to the development unless, in the opinion of the consent authority, it exhibits design excellence. I have had regard to the itemised matters at cl 6.21(4) and considered the agreed advice of the parties that the proposal, as amended, does now exhibit design excellence. The parties refer to the now reduced scale of the third floor, western setback increases which provide for an improved overall bulk and scale of the development, and the improvements to the external materials and finishes. I accept the advice of the parties and find that the proposal exhibits design excellence relevant to cl 6.21(4).

5. In regard to cl 7.14 and acid sulfate soils, I accept the advice of the parties that site is located on land classified as Class 5 and does not propose works requiring the preparation of an Acid Sulfate Soils Management Plan

6. In regard to cl 7.19, I am satisfied, in accordance with the advice of the parties, that the site will be comprehensively redeveloped under the development consent, 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.

3. Having regard to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept the advice of the parties that cll 7(2), 7(3) do not apply. I am also satisfied that the required consideration under cl 7(1) has been undertaken.

4. Having regard to State Environmental Planning Policy (Infrastructure) 2007, mindful of cl 45, as the proposed development would be carried out within 5m of an exposed overhead electricity power line, the DA was referred to Ausgrid for a period of 21 days and no objection was raised.

5. Having regard to State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, mindful of cl 10(3), I accept the agreed advice of the parties and agree that the removal of the tree identified as street tree No. 4, along with the proposed pruning regime, is minor and would not adversely affect the Waterloo HCA.

6. Having regard to s 4.15(1)(d) of the EPA Act, I have been advised of the notification of the proposal, including the recent amendments. I have been advised of and taken into consideration the submissions made, including those objecting to the proposal. The requirements of s 4.15(1)(d) of the EPA Act have been met.

Conclusion

8. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

10. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 the Applicant is to pay those costs of the Respondent thrown away as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. D/2020/461, for consent to demolish existing structures and construction of a three storey boarding house containing 19-rooms, basement car park, tree removal and associated landscaping works and civil works on land legally described as Lot 1 in DP91298, known as 75-77 Kellick Street, Waterloo, is approved subject to the conditions at Annexure B.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (148208, pdf)

Annexure B (321072, pdf)

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Decision last updated: 22 October 2021