Land and Environment Court New South Wales Medium Neutral Citation: Bettar v The Council of the City of Sydney [2022] NSWLEC 1011 Hearing dates: Conciliation conference on 3 November 2021 Date of orders: 7 January 2022 Decision date: 07 January 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. DA/2021/681 for the demolition of existing warehouse buildings and the construction of a residential flat building with basement parking at 17-21 Dunning Avenue, Rosebery (Lots 27 and 28 in Section A, DP 192683, and Lot 1 in DP 89963) is approved, subject to the conditions of consent in Annexure 'A'. (3) The Respondent is to register the development consent granted in relation to Development Application No. DA/2021/681 on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. (4) The Respondent is to publish a notice of the development consent granted in relation to Development Application No. DA/2021/681 on its website in accordance with cl 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – demolition of existing structures and construction of a residential flat building with basement parking – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.20, 8.7 Environmental Planning and Assessment Regulation 2000, cll 55, 124 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55 - Remediation of Land, cl 7 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, Sch 1 Sydney Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 6.14, 6.21, 7.5, 7.14 Category: Principal judgment Parties: Paul Bettar (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) M Mallos (Solicitor) (Respondent Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2021/231258 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2021/681 for the demolition of existing warehouse buildings and the construction of a residential flat building with basement parking (the proposal) at 17-21 Dunning Avenue, Rosebery (the site) by the Council of the City of Sydney (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 November 2021. I presided over the conciliation conference. 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. 3. 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. 4. There are preconditions to the exercise of power to grant development consent for the proposal, pursuant to the relevant provisions of the EPA Act, Sydney Local Environmental Plan 2012 (LEP 2012), State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) and State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65). Planning framework 1. The site is zoned B4 Mixed Use pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the zone, to which regard must be had pursuant to cl 2.3(2), 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. 1. The proposal complies with the height of buildings development standard for the site of 22.5m (cl 4.3 of LEP 2012). 2. The proposal has a floor space ratio (FSR) of 2:1. The FSR development standard for the site is 1.5:1 (cl 4.4 of LEP 2012). The application relies on the bonus FSR of 0.5:1 for community infrastructure (cl 6.14 of LEP 2012), because the site is within an area identified as "Area 6" (cl 6.14(4)(b) of LEP 2012) and the proposal includes a monetary contribution towards capital works projects being delivered by the Council within the Green Square. The proposal complies with the permitted FSR of 2:1 under cll 4.4 and 6.14 of LEP 2012. 3. I accept the Council's submission that the proposal exhibits design excellence in accordance with the terms of cl 6.21(3) of LEP 2012 and that in making that submission, regard has been given to the matters listed under sub-cl (4). 4. The proposal, with 25 car parking spaces, complies with the maximum number of car parking spaces permitted under cl 7.5(1)(c) of LEP 2012. 5. The site is identified on the Acid Sulfate Soil map as being Class 5 land and the proposal includes an Acid Sulphate Management Plan dated 8 October 2021, as required under cl 7.14(3) of LEP 2012. Condition 30 requires compliance with the plan. 6. Clause 7(1) of SEPP 55 is in the following terms: (1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. I accept the parties' agreement that the proposal satisfies the matters outlined under cl 7(1)(a) of SEPP 55 on the basis of Site Audit Statement prepared by Geosyntec Consultants dated 11 November 2021, and a condition of consent requiring the site to be remediated (condition 27). 2. The application includes a design verification statement and a design principles report prepared by the architect evaluating the design quality of the proposal in accordance with the design quality principles under Sch 1 to SEPP 65. Conclusion 1. I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The Court notes: 1. That the Council of the City of Sydney, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending development application DA/2021/681. 2. That the amended application as described in Annexure 'B' was lodged on the NSW Planning Portal on 20 December 2021. 3. That the Applicant subsequently filed the amended application with the Court on 21 December 2021. 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA/2021/681 for the demolition of existing warehouse buildings and the construction of a residential flat building with basement parking at 17-21 Dunning Avenue, Rosebery (Lots 27 and 28 in Section A, DP 192683, and Lot 1 in DP 89963) is approved, subject to the conditions of consent in Annexure 'A'. 3. The Respondent is to register the development consent granted in relation to Development Application No. DA/2021/681 on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. 4. The Respondent is to publish a notice of the development consent granted in relation to Development Application No. DA/2021/681 on its website in accordance with cl 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days of the date of these orders. ____________ Susan O'Neill Commissioner of the Court (Annexure A) (502995, pdf) (Annexure B) (68055, pdf) ********** 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: 07 January 2022