Land and Environment Court New South Wales Medium Neutral Citation: CPG Onslow Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1489 Hearing dates: Conciliation conference on 15 May 2023 Date of orders: 29 August 2023 Decision date: 29 August 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,000.00 within 28 days from the date of determination. (2) The appeal is upheld. (3) Development Application No. D/2022/456 for the demolition of the existing building and construction of a new residential flat building comprising dwellings and basement levels, at 1 Onslow Place, Elizabeth Bay, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition of an existing residential flat building and construction of a new residential flat building – amended application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.6, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 202, s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sydney Local Environmental Plan 2012, cll 4.3.4.4, 6.21C Category: Principal judgment Parties: CPG Onslow Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2022/386631 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 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/2022/456 for the demolition of the existing building and construction of a new residential flat building comprising dwellings and basement levels (the proposal), at 1 Onslow Place, Elizabeth Bay (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 15 May 2023. I 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. 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. 5. There are preconditions to the exercise of power to grant development consent for the proposal. Amended application 1. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition (1), Part A, of the conditions of consent at Annexure A. 2. The Council submitted the following regarding the amended application: "(A) The development is consistent with the objectives of the R1 General Residential zone. (B) The amended proposal is compliant with the Height of Buildings development control, applying the site in accordance with Clause 4.3 of the Sydney LEP 2012. (C) The proposal is compliant with the Floor Space Ratio development control, applying to the site in accordance with Clause 4.4 of the Sydney LEP 2012. (D) The amended proposal satisfies the Design Excellence provisions provided by Clause 6.21C of the Sydney LEP 2012. (E) The amended proposal will not cause disproportionate or unacceptable adverse impacts upon the amenity of adjoining properties. (G) Appropriate conditions are imposed to ensure the proposal will not significantly or adversely impact upon the visual privacy of neighbours." Jurisdictional pre-conditions to the grant of consent 1. The site is zoned R1 General Residential pursuant to Sydney Local Environmental Plan 2012 (LEP 2012). The objectives of the R1 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 amended proposal complies with the height of buildings and floor space ratio (FSR) development standards for the site, pursuant to cll 4.3 and 4.4 of LEP 2012. 2. Clause 6.21C of LEP 2012, Design Excellence, applies to the amended proposal. The Court, exercising the function of the consent authority, must have regard to the following matters under sub-cl (2): (2) In considering whether development to which this Division 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 am satisfied that the proposal exhibits design excellence for the following reasons: 1. The form, materials and detailing of the amended proposal achieve a high standard of architectural design; 2. The form and external appearance of the amended proposal are responsive to the site's opportunities and constraints, including the dense urban context of the site; 3. The form of the amended proposal is responsive to maintaining view corridors from adjoining development wherever possible; 4. The land is suitable for the development because the use is maintained, and the design is responsive to the built environment including the identified values of nearby heritage items and the heritage conservation area; 5. The height is compliant with the height of buildings and FSR development standards for the site, which are informed by detailed studies of the locality; 6. There are no unreasonable amenity impacts on adjoining development, considering the density and urban character of the locality; 7. The amended proposal achieves an appropriate interface at ground level between the built form and the public domain as the site's entry and circulation is clearly legible; and 8. The landscaping is integrated into the architectural design of the amended proposal. 1. I accept the Council's submission that the land is suitable for the development pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, as the use remains the same and on the basis of the findings of the preliminary site investigation submitted as part of the application. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdiction filed with the Court on 17 July 2023 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 Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,000.00 within 28 days from the date of determination. 2. The appeal is upheld. 3. Development Application No. D/2022/456 for the demolition of the existing building and construction of a new residential flat building comprising dwellings and basement levels, at 1 Onslow Place, Elizabeth Bay, 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 (469054, pdf) Annexure B (39532422, 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: 29 August 2023