Land and Environment Court New South Wales Medium Neutral Citation: Macri v The Council of the City of Sydney [2022] NSWLEC 1467 Hearing dates: Conciliation conference on 27 June 2022 Date of orders: 06 September 2022 Decision date: 06 September 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. D/2021/1293 for alterations and additions to an existing dwelling at 53 Myrtle Street, Chippendale, also known as Lot 1 in Deposited Plan 33651, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, sch 6, cl 3 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Sydney Local Environmental Plan 2012, cll 4.3, 5.10, 6.21C, 7.14 Category: Principal judgment Parties: Francesca Macri (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) P Canning (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2022/96882 Publication restriction: Nil 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/2021/1293 for alterations and additions to an existing dwelling (the proposal) at 53 Myrtle Street, Chippendale (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 27 June 2022. 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. Planning framework 1. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application because the application was lodged with the Council on 3 November 2021, the Class 1 application was filed with the Court on 5 April 2022 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021). 2. The application was amended pursuant to cl 55(1) of the EPA Regulation 2000 with the agreement of the Council as the consent authority and the amended application was lodged on the NSW planning portal on 12 August 2022. 3. The site is zoned R1 General Residential pursuant to Sydney Local Environmental Plan 2012 (LEP 2012). The objectives of the zone are: • 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. There is an existing non-compliance with the applicable height of buildings control set out under cl 4.3 of the LEP 2012. The proposal does not increase the existing height of the building, nor are any additional works proposed which would breach the height of buildings development standard for the site of 9m. The proposed rear addition reaches a maximum height of 6.97m. 2. The site is identified as a contributory item located within the Darling Nursery Estate Heritage Conservation Area (HCA) (Item C10). The consent authority must, before granting consent under cl 5.10 of LEP 2012, consider the effect of the proposal on the heritage significance of the HCA. The application includes a heritage impact statement prepared by an appropriately qualified heritage expert and I accept the conclusion of the heritage impact statement that the impact of the proposal on the heritage significance of the HCA is acceptable. 3. Clause 6.21C(1) of LEP 2012 requires that development consent not be granted to development to which Div 4 of LEP 2012 applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. The application includes a design excellence statement and I accept the conclusion of the design excellence statement that the proposal achieves compliance with cl 6.21C(2) of LEP 2012. 4. Clause 7.14 of LEP 2012 provides that development consent is required for works described in the table to that subclause on land shown on the Acid Sulfate Soils Map. Although the site is identified as containing 'Class 5 Acid Sulfate Soils', I accept the conclusion of the statement of environmental effects that the works do not involve the disturbance of soils exceeding 1 tonne and are not likely to lower the water table. 5. I accept the Council's submission that there is no evidence that the land is contaminated because the site has historically been used for residential purposes, pursuant to cl 4.6(1)(a) of the State Environmental Planning Policy (Resilience and Hazards) 2021. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 15 August 2022 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. D/2021/1293 for alterations and additions to an existing dwelling at 53 Myrtle Street, Chippendale, also known as Lot 1 in Deposited Plan 33651, is determined by the grant of consent, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court ********** Annexure A 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: 06 September 2022