Land and Environment Court New South Wales Medium Neutral Citation: Hong Xu v The Council of the City of Sydney [2022] NSWLEC 1326 Hearing dates: Conciliation held on 20 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) The Applicant's written request dated April 2022 to vary the motorcycle parking development standard of clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009, pursuant to clause 4.6 of the Sydney Local Environmental Plan 2012, is upheld. (3) The Applicant's written request dated 5 October 2021 to vary the floor space ratio development standard of clause 4.4 of the Sydney Local Environmental Plan 2012, pursuant to clause 4.6 of the Sydney Local Environmental Plan 2012, is upheld. (4) Development Application DA/2021/938, as amended, for alterations to an approved boarding house development, to facilitate separate operation of the two buildings, and subdivision of the land into two Torrens title lots on Lot 1 in DP 1257262, also known as 12 Sparkes Street, Camperdown, is determined by the granting of consent subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – boarding house functionality – non-compliant floor space ratio and motorcycle parking development standards – cl 4.6 written request to vary development standards - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30 Sydney Local Environmental Plan 2012, cll 2.3, 2.6, 4.4, 4.6 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Hong Xu (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: S Griffiths (Applicant) Singh (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2021/337020 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the actual refusal of Development Application (DA) D/2021/938 by the City of Sydney Council (hereafter the Council) which seeks Torrens Title subdivision from one lot into two lots and works to allow the function of previously approved boarding houses on each proposed lot, on existing Lot 1 DP 1257262, also known as 12 Sparkes Street, Camperdown (the site). 2. The site benefits from an existing and current development consent granted under development application D/2016/369, which as amended is for "Alterations, additions and adaptive re-use of the existing heritage item at 12 Sparkes Street, Camperdown and construction of a new 3 storey building fronting Sparkes Lane for use as boarding house accommodation". The DA under appeal relates to this consent, by seeking minor amendments to the structures already consented to allow functionality. Background 1. The DA was submitted to Council on 17 August 2021, and after notification, made consistent with the relevant planning controls, no submissions were received during the notification period. After internal review, the DA was refused by Council on 28 November 2021. 2. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. On 20 April 2022, a notice of motion (NoM) filed by the applicant sought to amend the DA under appeal, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). Leave was granted by the Court to amend the DA as follows: "Alterations to the approved boarding house development, to facilitate separate operation of the two buildings, and subdivision of the land into two Torrens title lots". Relevant plans were uploaded by the applicant to the NSW Planning Portal on 21 April 2021. The amended plans were re-notified, and one submission in objection was received by Council. 4. The Court agreed to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held by Microsoft Teams and without an onsite view at the request of the parties. 5. Prior to the conciliation, the Council agreed for the applicant to further amend the plans and documents that support and amend the DA, pursuant to cl 55 of the EPA Reg. 6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objector have also been satisfied. The decision of the parties is to uphold the appeal and grant consent to DA D/2021/938, with conditions. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA D/2021/938, subject to conditions described in Annexure 'A', pursuant to s 4.17. Jurisdictional prerequisites 1. The DA was submitted with the consent of the site owners, pursuant to cl 49 of the EPA Reg. 2. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining the development application. The following jurisdictional requirements have been specifically considered and are considered satisfied: 1. Sydney Local Environmental Plan 2012 (SLEP): 1. Pursuant to cl 2.3 of the SLEP, the site is situated over land zoned B4 Mixed use. The proposed subdivision, as described to the Court are permissible with consent, pursuant to cl 2.3. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SLEP, however, there is a resultant breach of the floor space ratio (FSR) standard of 1.25:1 for the (already consented under a separate DA) boarding house on proposed Lot 2, pursuant to cl 4.4. Although the original consent for the boarding houses was compliant for FSR, the subdivision reallocates the FSR over proposed Lots 1 and 2. 2. The amended DA relies on a written request, seeking a variation of the non-compliant FSR, pursuant to cl 4.6 of the SLEP. The cl 4.6 written request provided to the Court explains that the non-compliance in the FSR standard does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity to existing dwellings on the site or adjacent to the site. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk/scale impacts to adjoining developments, as approved. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard for cl 4.4. 3. The Court must be satisfied to grant consent to the DA that the request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the SLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the FSR standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (for the B4 zone) and FSR (cl 4.4) standard. The breach in the FSR standard on proposed Lot 2 will not cause undue concern to surrounding residents, the streetscape, or those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the FSR standard for Lot 2. 4. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed, and that a variation in the cl 4.4 FSR development standard (for proposed Lot 2) should be granted. 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH): 1. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP ARH. However, because of the separation of the boarding houses, there is a breach of the motorcycle parking standard for the boarding house on proposed Lot 1, pursuant to cl 30(1)(h), which requires at least one motorcycle parking space for every 5 boarding rooms. 2. The amended DA relies on a written request, seeking a variation of the non-compliant motorcycle parking on proposed Lot 2, pursuant to cl 4.6 of the SLEP. The cl 4.6 written request provided to the Court explains that the non-compliance in the motorcycle parking standard does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity to residents, existing dwellings on the site or adjacent to the site. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and that there are no objectives for cl 30(1)(h). The written request however explains that the site is near public transport, shops and public infrastructure, therefore the intent of the standard remains satisfied. 3. The Court must be satisfied to grant consent to the DA that request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the SLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the motorcycle parking standard (for proposed Lot 1) describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The amended DA, as described to the Court, is consistent with the objectives of the zone (for the B4 zone) and addressees the considered intent of the motorcycle parking (cl 30(1)(h)) standard. The breach in the motorcycle parking standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The proposed subdivision and works are in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the motorcycle parking standard for the proposed development. 4. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed, and that a variation in the SEPP ARH cl 30(1)(h) motorcycle parking development standard (for proposed Lot 1) should be granted. 1. Sydney Development Control Plan 2012 (SDCP): 1. The relevant requirements of the SDCP are addressed, based on the amended plans, supporting documents to the DA and conditions of consent. The original and amended DA were publicly notified in accordance with the SDCP, and one submission was received, which has been considered. Grant of consent 1. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement, or for the Court in making the orders as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submission and existing consent on the site. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA D/2021/938 can be determined by the grant of consent. 4. 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. 5. The Court notes that: 1. The Respondent as the relevant consent authority has agreed to the Applicant further amending the Application Class 1, pursuant to cl 55(1) of the EPA Reg 2000. 2. The amended development application documents were lodged on the NSW Planning Portal on 8 June 2022. 3. The amended development application was filed with the Court on 21 June 2022. 1. The Court orders that: 1. The appeal is upheld. 2. The Applicant's written request dated April 2022 to vary the motorcycle parking development standard of clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009, pursuant to clause 4.6 of the Sydney Local Environmental Plan 2012, is upheld. 3. The Applicant's written request dated 5 October 2021 to vary the floor space ratio development standard of clause 4.4 of the Sydney Local Environmental Plan 2012, pursuant to clause 4.6 of the Sydney Local Environmental Plan 2012, is upheld. 4. Development Application DA/2021/938, as amended, for alterations to an approved boarding house development, to facilitate separate operation of the two buildings, and subdivision of the land into two Torrens title lots on Lot 1 in DP 1257262, also known as 12 Sparkes Street, Camperdown, is determined by the granting of consent subject to the conditions set out in Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A.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: 28 June 2022