Land and Environment Court New South Wales Medium Neutral Citation: Robertson v The Council of the City of Sydney [2023] NSWLEC 1114 Hearing dates: Conciliation conference on 19 December 2022 Date of orders: 15 March 2023 Decision date: 15 March 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. D/2021/1525 for alterations and additions to an existing residential dwelling, at 46 Kepos Street, Redfern, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – heritage conservation area – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 55, 55AA, 121B Environmental Planning and Assessment Regulation 2021, s 3 of Sch 6 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 5.21, 6.21C Category: Principal judgment Parties: Broughton Robertson (First Applicant) Jenny Wong (Second Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: Broughton Robertson (Self-represented) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Sydney City Council (Respondent) File Number(s): 2022/287000 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/2021/1525 for alterations and additions to an existing residential dwelling including internal alteration to the existing dwelling and construction of a two storey addition at the rear of the site (the proposal), at 46 Kepos Street, Redfern (the site), by the Council of the City of Sydney (the Council). 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 December 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. Amended Plans 1. The Environmental Planning and Assessment Regulation 2000 (2000 Regulation) continues to apply to the application, because the application was lodged on 29 December 2021 and had not been determined by 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to s 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, a requirement to use the NSW Planning Portal under the 2000 Regulation, cll 55(1), 55AA(2)(d) or 121B(1), does not apply if the development application is subject to proceedings in the Court. 2. The Council, as the consent authority, consented to the amendment of the application on 15 December 2022. The amended application amended the architectural plans the subject of the application. As a result of the amendment of the architectural plans, the parties reached agreement in principle during the conciliation conference on 19 December 2022. 3. Notwithstanding the recent changes to the Environmental Planning and Assessment Regulation 2021 at subs 3(2) of Sch 6, the amended plans were lodged on the NSW planning portal on 15 December 2022. Planning framework 1. The site is zoned R1 General Residential pursuant to Sydney Local Environmental Plan 2012 (LEP 2012). The objectives of the zone, to which regard must be had, 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. The proposal complies with the height of buildings development standard of 9m under cl 4.3 of LEP 2012. 2. The proposal complies with the floor space ratio development standard of 1:1 under cl 4.4 of LEP 2012. 3. The site is within the Baptist Street Heritage Conservation Area C53 (HCA). Pursuant to cl 5.10(4) of LEP 2012, the Court, exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the HCA. The existing dwelling is identified as contributory to the heritage significance of the HCA. I accept the Council's submission that the proposal will not have any adverse effects on the HCA. 4. The site is identified as being subject to flooding and defined as low to medium affectation, which is mainly at the rear of the site and requires the ground floor level at the rear of the stie to be 0.3m above the 1% Annual Exceedance Probability (AEP) flood level, pursuant to cl 5.21(2) of LEP 2012. The AEP depth for the site is up to 0.4m. The rear study space of the proposal is at least 300mm above the relevant kerb reference point and is consistent with the applicable floodplain management guidelines. I accept the Council's submission that all the relevant matters under cl 5.21 have been satisfied. 5. I accept the Council's submission that the proposal exhibits design excellence having regard to the matters listed under cl 6.21C(2) of LEP 2012. 6. I accept the Council's submission that the site has been used for residential purposes since at least 1900 and so the site is not contaminated and is suitable for the proposal pursuant to s 4.6 of 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 03 February 2023 and I am satisfied, based 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/2021/1525 for alterations and additions to an existing residential dwelling, at 46 Kepos Street, Redfern, 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 (193477, 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: 16 March 2023