Land and Environment Court New South Wales Medium Neutral Citation: Fuqiang Investments Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1234 Hearing dates: Conciliation conference on 6 & 25 March 2020; 21 May 2020 Date of orders: 02 June 2020 Decision date: 02 June 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to amend Development Application D/2019/120 and to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto. (2) The Applicant is to pay the Respondent's costs pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $20,000 payable within 28 days. (3) The appeal is upheld. (4) Development Consent is granted to Development Application D/2019/120 for the partial demolition, excavation and erection of a building with pool and shop ground floor for use as backpacker accommodation at 810-812A George Street Haymarket, NSW 2000 subject to the conditions of consent annexed hereto and marked 'A' and the plans annexed hereto and marked 'B'. Catchwords: DEVELOPMENT APPLICATION – backpackers accommodation – adjacent heritage building – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Fuqiang Investments Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: C McEwen SC with S Nash (Applicant) A Pickles SC (Respondent) Solicitors: Salim Rutherford Lawyers (Applicant) Sydney City Council (Respondent) File Number(s): 2019/224500 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application D/2019/120. The original development application sought approval for partial demolition of the existing building, retention of the George Street façade, excavation for one basement level, and construction of a 15-storey building for use as a backpackers accommodation, containing 291 dorm beds and 4 double private rooms. The development is proposed at 810-812A George Street, Haymarket (Lot 6 & 7 DP 978643). 2. Through the conciliation process, the parties have agreed on an amended design for the proposed development. A key change in the proposal is the reduction in height of the proposed building to nine storeys. The amended plans which form part of the consent are annexed to the judgment. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 6 March, 25 March and 21 May 2020. 5. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The application requires concurrence of Transport for NSW under cl 88 of the State Environmental Planning Policy (Infrastructure) 2007. Concurrence was provided on 25 September 2019 and the requested conditions have been incorporated into the consent. 2. The subject site is zoned 'B8 – Metropolitan Centre Zone' under Sydney Local Environmental Plan 2012 (LEP 2012). Backpackers' accommodation is a use that is permissible with consent in the zone. 3. The proposed development is compliant with the development standards for height and floor space ratio in LEP 2012. 4. Consistent with the requirement of cl 6.21 of LEP 2012, I am of the opinion that the proposed development exhibits design excellence, satisfying the precondition. 5. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend Development Application D/2019/120 and to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto. 2. The Applicant is to pay the Respondent's costs pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $20,000 payable within 28 days. 3. The appeal is upheld. 4. Development Consent is granted to Development Application D/2019/120 for the partial demolition, excavation and erection of a building with pool and shop ground floor for use as backpacker accommodation at 810-812A George Street Haymarket, NSW 2000 subject to the conditions of consent annexed hereto and marked 'A' and the plans annexed hereto and marked 'B'. ………………………… D M Dickson Commissioner of the Court Annexure A (607029, pdf) Annexure B plans_Part1 (1839685, pdf) Annexure B plans_Part2 (1442928, pdf) ********** Amendments 03 June 2020 - Correction to the Representation (Counsel) of the Applicant and Respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2020