Sandlik Construction Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1415

Land and Environment Court New South Wales

Medium Neutral Citation: Sandlik Construction Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1415 Hearing dates: Conciliation conference on 5 and 8 July 2021 Date of orders: 22 July 2021 Decision date: 22 July 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: Refer to Orders at [8] Catchwords: DEVELOPMENT APPEAL – conciliation conference – alterations and additions – garage and studio – solar access – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34 Sydney Local Environmental Plan 2012, cl 6.21 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Sandlik Constructions Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) P Canning (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2021/76848 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application D/2020/1329 seeking development consent for alterations and additions to a residential dwelling, involving construction of a two-storey garage studio addition at the rear of the site fronting on to Seymore Place (the Proposed Development) at 142 Flinders Street Paddington legally described as Lot 1 DP 64991 (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 has been held on 5 and 8 July 2021. I have presided over the conciliation conference. 3. 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. This decision involved the Court granting leave to rely on amended plans, upholding the appeal and granting development consent to the development application subject to conditions. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be permissibility and design excellence matters to which the consent authority must have regard to in forming the opinion that the Proposed Development exhibits design excellence as required by cl 6.21(3) of the Sydney Local Environmental Plan 2012 (SLEP). 5. The parties explained how the jurisdictional prerequisites have been satisfied and state that the matters on which the Court must form an opinion or reach a state of satisfaction are met as set out below. 1. Development application D/2020/1329 was lodged with the Respondent on 9 December 2020. 2. The development application was publicly notified and advertised for a period of 36 days from 18 December 2020 to 23 January 2021. Three submissions were received from two submitters. I note that there was no Notice of Objectors filed with the Court and that there were no objectors at the conciliation conference. 3. On 18 February 2021 development application D/2020/1329 was refused by the Respondent. 4. On 15 June 2021 the Applicant provided amended shadow diagrams that resolved the contentions raised by the Respondent in the Statement of Facts and Contentions filed 9 April 2021. 5. The proposal is permissible within the R1 Residential zone and is consistent with the objectives of the zone. 6. Subject to conditions of consent agreed between the parties, the Proposed Development is consistent with and meets the objectives of Sydney Development Control Plan 2012. 7. There are no jurisdictional considerations regarding development standards. 8. The Proposed Development exhibits design excellence, having regard to the matters set out in cl 6.21(4) of the SLEP. I have considered the terms of cl 6.21 and I have extracted the relevant part as follows: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters— (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design. 1. I have formed the opinion that the Proposed Development exhibits design excellence. 2. The additional material provided by the Applicant demonstrates that the proposal is consistent with the relevant planning controls and will have no adverse amenity and environmental impacts on the locality and therefore, is in the public interest in accordance with s 4.15 of the EPA Act. 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons provided by the parties set out in paragraph [5] above. 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. The Court orders: 1. Leave is granted to the Applicant to rely upon the following amended documentation: Plan Name Drawing number Revision Date Prepared by Architectural plans Proposed Ground Floor Plan DA-01-02 AB 01/07/2021 Hancock Architects Proposed First Floor Plan DA-01-03 AB 01/07/2021 Hancock Architects Proposed Roof Plan DA-01-04 AB 01/07/2021 Hancock Architects Proposed West + East Elevation DA-01-05 AB 01/07/2021 Hancock Architects Proposed Long Section DA-01-06 AB 01/07/2021 Hancock Architects Proposed North Elevation DA-01-07 AB 01/07/2021 Hancock Architects Proposed North Elevation – View from DA-01-08 AB 01/07/2021 Hancock Architects No.140 Proposed South Elevation DA-01-09 AB 01/07/2021 Hancock Architects Proposed South DA-01-10 AB 01/07/2021 Hancock Architects Elevation – View from No. 144 Proposed Materials & DA-04-01 A 03/12/2020 Hancock Architects Finishes Schedule