ZQ2 Management Pty Ltd v The Council of the City of Sydney

[2021] NSWLEC 1656

Land and Environment Court

New South Wales

Medium Neutral Citation:

ZQ2 Management Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1656

Hearing dates:

Conciliation conference on 25 August, 10 & 20 September, and 15 October 2021

Date of orders:

2 November 2021

Decision date:

02 November 2021

Jurisdiction:

Class 1

Before:

Horton 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 the costs of the respondent consent authority that are thrown away as a result of amending the development application, as agreed at $4,000.00.

(2) The appeal is upheld.

(3) Development Application D/2021/292 for alterations and additions to two existing buildings to construct a three (3) storey mixed use development comprising ground floor commercial tenancies and a boarding house use on the two levels above on land legally comprising of two allotments described as Lot 1 DP 962466, known as 193 King Street, Newtown and Lot 1 DP 448549, known as 195 King Street, Newtown is approved subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – Boarding house development in heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29, 30, 30A, 49

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

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

State Environmental Planning Policy (Infrastructure) 2007, cl 101

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.21

Category:

Principal judgment

Parties:

ZQ2 Management Pty Ltd (First Applicant)
ZQ3 Management Pty Ltd (Second Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicants)
A Simpson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicants)
The Council of the City of Sydney (Respondent)

File Number(s):

2021/168870

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the Council of the City of Sydney (the Respondent) of Development Application No D/2021/292 seeking consent, as amended, for alterations and addition to two existing buildings to construct a three-storey mixed use development comprising ground floor commercial tenancies and a boarding house use on the two levels above at 193-195 King Street, Newtown (the site).

2. 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 25 August 2021. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached in principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, subject to amended documents for which an adjournment was granted.

4. I granted a further adjournment to permit the re-notification of the amended plans between 22 September and 7 October 2021, following which period the Respondent agreed to the Applicant lodging the amended application on the NSW Planning Portal in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 October 2021.

6. The parties ask me to approve their decision as set out in the s34 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 s34 agreement.

7. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied, in order to allow the Court to make the agreed orders at [14].

1. The site is located in the B2 Local Centre zone in accordance with the Sydney Local Environmental Plan 2012 (SLEP), in which Boarding houses are permitted with consent where consistent with the objectives of development in the zone as follows:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To allow appropriate residential uses so as to support the vitality of local centres.

2. The proposed development is within the height of building standard at cl 4.3 of the SLEP.

3. The floor space ratio (FSR) is within the FSR permitted by the operation of cl 4.4 of the SLEP, and the bonus of 0.5:1 achieved by operation of cl 29(1)(c)(i) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

4. The site is located within the King Street Heritage Conservation Area (King Street HCA), and buildings on the site are identified as contributory to the heritage significance of the area. On the basis of the Heritage Impact Statement, and the amended application that has considered views of the proposal from locations within the conservation area, I consider the effect of the proposed development on the King Street HCA to be acceptable in accordance with cl 5.10 of the SLEP.

5. As the proposal is for external alterations of a building to which the SLEP applies, cl 6.21 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 (3)). Having regard to those matters at subcl (4), I consider the proposal to exhibit design excellence with particular regard to the manner in which the proposal has addressed heritage issues and streetscape constraints, the bulk, massing and modulation of buildings, and street frontage heights.

6. I am satisfied that the proposed boarding house development complies with the provisions of the SEPP ARH for the reasons that follow:

• The proposal achieves the provisions at cl 29 that cannot be used to refuse consent, and also complies with the development standards applicable to boarding houses in cl 30.

• I accept the detailed assessment contained in the Statement of Environmental Effects prepared by The Planning Hub which concludes that the proposed development, as amended, is consistent with the character of the local area, and the agreement of the parties’ experts, that the proposal as amended is compatible with the character of the local area as required by cl 30A.

• As the site has not been used for the purposes of low rental housing during the relevant period, the provisions of cl 49 of the SEPP ARH do not apply.

7. On the basis of the conclusion of the Detailed Site investigation prepared by EIaustralia, dated 24 August 2021, I am satisfied that the site is suitable for the proposed development in accordance with cl 7 of State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55); consideration has been given to whether the land is contaminated.

8. Clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 requires consideration of the impact of proposed development with a frontage to a classified road. As there is no vehicular access proposed from the site to the classified road, I am satisfied on those matters at subcl (2).

9. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No. 1170606M_03 dated 15 September 2021, prepared by BCA Energy) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

8. 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.

9. 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.

Orders

10. The Court notes:

1. The Council of the City of Sydney Council as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA Number D/2021/149 filed with the Court on 11 June 2021.

2. The applicant lodged the amended development application on the NSW planning portal on 13 October 2021.

3. The applicant filed with the Court the amended application on 13 October 2021.

11. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, as agreed at $4,000.00.

2. The appeal is upheld.

3. Development Application D/2021/292 for alterations and additions to two existing buildings to construct a three (3) storey mixed use development comprising ground floor commercial tenancies, and a boarding house use on the two levels above on land legally comprising of two allotments described as Lot 1 DP 962466, known as 193 King Street, Newtown and Lot 1 DP 448549, known as 195 King Street, Newtown is approved subject to the conditions set out in Annexure “A”.

…………………..

T Horton

Commissioner of the Court

Annexure A (289870, pdf)

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Decision last updated: 02 November 2021