Escudero v The Council of the City of Sydney [2021] NSWLEC 1102

Land and Environment Court New South Wales

Medium Neutral Citation: Escudero v The Council of the City of Sydney [2021] NSWLEC 1102 Hearing dates: Conciliation conference on 18 February 2021 Date of orders: 25 February 2021 Decision date: 25 February 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [11] Catchwords: DEVELOPMENT APPLICATION – alterations and additions – heritage conservation area – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: David Salvador Escudero (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: S Bhargava (Solicitor) (Applicant) A Singh (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) The Council for the City of Sydney (Respondent) File Number(s): 2020/100004 Publication restriction: No

Judgment 1. COMMISSIONER: Mr David Escudero is the owner of a two-storey terrace house in Zetland to which alterations and additions were proposed by way of development application DA/2019/824 (the DA) that was subsequently refused by the Council of the City of Sydney (the Respondent), and which is now the subject of an appeal, brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The DA sought consent for: 1. A ground and first floor extension to the existing 2 storey terrace; 2. A first floor addition to the existing garage to create a rear laneway building, with a bridge connecting the rear building to the main dwelling; 3. Internal and external alterations to the existing terrace; and 4. Planting of a small tree within the rear courtyard, and pruning and removal of trees within the adjacent public park. 1. The appeal was originally listed for hearing before me on 18-19 February 2021. However, prior to the commencement of the hearing, the parties advised the Court that they had reached agreement, under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), as to the terms of a decision in the proceedings that was acceptable to the parties. 2. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 17 February 2021. 3. 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. 4. 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 [11]. 5. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed for the reasons that follow: 1. The site is located within the R1 General Residential zone according to the Sydney Local Environmental Plan 2012 (SLEP) in which attached dwelling development is permitted with consent. 2. The objectives of the R1 zone are in the following terms: • 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. 1. The site is also located within the Zetland Estate Conservation Area as identified in Schedule 5 of the SLEP. On the basis of the amended plans, and the agreement of the parties, I consider the effect of the proposed development on the Zetland Estate Conservation Area to be acceptable in accordance with cl 5.10(4) of the SLEP. 2. As the proposed development is for external alterations to an existing building on land to which the SLEP applies, cl 6.21(3) of the SLEP requires the proposed development to exhibit design excellence. On the basis of the design excellence statement prepared by the Respondent, I am satisfied that the proposed development exhibits design excellence. 1. Finally, I am satisfied that the application is accompanied by a BASIX Certificate (Certificate No. A351936_03, dated 11 January 2021), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation). 2. 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. 3. 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. 4. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the Applicant to rely upon the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Architectural plans Level 01 proposed 1905-02-01-01 F 15 October 2020 Ian Moore architects Level 02 – proposed 1905-02-01-02 F 15 October 2020 Ian Moore architects Roof plan – proposed 1905-02-01-03 G 15 October 2020 Ian Moore architects East and West Elevations – proposed 1905-02-02-01 F 15 October 2020 Ian Moore architects South Elevation – proposed 1905-02-02-02 G 15 October 2020 Ian Moore architects Section 01 – proposed 1905-02-03-01 G 15 October 2020 Ian Moore architects Section 02 – proposed 1905-02-03-02 G 15 October 2020 Ian Moore architects Section 03 + 04 – proposed 1905-02-03-03 F 15 October 2020 Ian Moore architects Sections 05 + 06 – proposed 1905-02-03-04 G 15 October 2020 Ian Moore architects Sections 07 + 08 – proposed 1905-02-03-05 F 15 October 2020 Ian Moore architects Section 09 – proposed 1905-02-03-06 E 15 October 2020 Ian Moore architects Section 10 – proposed 1905-02-03-07 C 15 October 2020 Ian Moore architects View from the south 1905-15-3D-05 B 15 October 2020 Ian Moore architects View from the east 1905-15-3D-11 B 15 October 2020 Ian Moore architects Materials and colours schedule 1905-14-01-01 C 10 February 2021 Ian Moore architects Reports Updated tree assessment report prepared by David Bidwell dated 8 December 2020 BASIX Certificate No.A351936_03 prepared by Ian Moore Architects dated 11 January 2021