Land and Environment Court New South Wales Medium Neutral Citation: Robilliard v The Council of the City of Sydney [2023] NSWLEC 1713 Hearing dates: Conciliation conference on 17 November 2023 Date of orders: 28 November 2023 Decision date: 28 November 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to development application D/2022/588 for the internal and external alterations and additions to 364,366,368 and 370 Cleveland Street, Surry Hills, including extensions to the rear of Nos 364, 366, and 368, garage at the rear of Nos 364 and 366, with the continued use of the premises as dwelling houses, subject to the conditions in Annexure marked 'A'. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing adjoining terraces – approval for use and new work – conciliation conference – amended plans and additional information – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 6.24, 6.25, 8.15, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 Sydney Local Environmental Plan 2012, cll 5.10, 5.21, 6.21C, Sch 5 Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Michael Robilliard (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: S Vatala (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Dentons Australia Limited (Applicant) Council of the City of Sydney File Number(s): 2023/115456 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This appeal concerns a development application for alterations and additions to the existing terraces located at 364, 366, 368 and 370 Cleveland Street, Surry Hills (the site). The development for which consent is sought includes extensions to the rear of 364, 366, and 368 and new garage at the rear of 364 and 366. The Applicant appeals the actual refusal of the development pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 19 September 2023. That conciliation conference was terminated on 20 October 2023. 3. Following the conciliation conference, the parties continued without prejudice discussions and on 13 November 2023 sought orders for a further conciliation conference. A further conciliation conference was listed on 17 November 2023. I presided over the further conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of the decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the development application, as amended, and granting development consent subject to the annexed conditions of consent. 4. As presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of the satisfaction on the basis that: 1. The development application was lodged by Michael Robilliard, as agent for the owner. The Applicant (as principal) has standing to commence the proceedings: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43]. 2. At the time of lodgement of the development application, the site was in the process of being purchased by the current owner, but settlement had not yet taken effect. At the time of lodgement of the development application owner's consent was provided by the owners at that date. A letter providing owner's consent from the current owner of the site has been provided to the Court. 3. The site is zoned MU1 Mixed use under Sydney Local Environmental Plan 2012 (LEP 2012) and residential development (dwelling house) is permissible with consent. In determining the development application, I have had regard to the objectives of the MU1 Mixed use zone. 4. The site is within the Goodlet Street Heritage Conservation Area listed as a heritage conservation area (HCA) in Sch 5 of the LEP 2012. Pursuant to cl 5.10(4) of LEP 2012, in determining the development, I have considered the impact of the proposed development on the significance of the HCA. The development application is accompanied by a Heritage Impact Assessment prepared by Weir Phillips Heritage and Planning. The parties agree and I accept that the proposed development will not have a detrimental impact on the heritage significance of the HCA that warrants the refusal of the development application. 5. Pursuant to cl 6.21C of LEP 2012, consent must not be granted to the development unless, in the opinion of the consent authority, it exhibits design excellence. There are a series of itemised matters at cl 6.21C(2) which a consent authority must have regard to in deciding this question. The Statement of Environmental Effects (the statement) accompanying the development application responds to each of those matters. The statement works through each of the matters at cl 6.21C(2) drawing the conclusion that the proposal exhibits design excellence having regard to the nominated considerations. I am satisfied the amended development application exhibits design excellence, meeting the requirements of cl 6.21C Design Excellence. In making this determination, I have had regard to the matters at subcl (2) as follows: 1. The amended development application exhibits a high standard of architectural design, materials and detailing appropriate to the building type and location. 2. The proposed works to the frontage with the public domain, which forms part of the amended development application, will improve the quality and amenity of the public domain. Further, the development will improve the interface at ground level between the buildings and the public domain. 3. The design of the building does not cause adverse impact on view corridors, public domain, street frontage heights, or amenity of adjoining developments. 4. The design of the building is suitable for the land, considers existing and future surrounding land use, achieves and adopts ecologically sustainable development principles, and provides appropriate pedestrian and vehicular access. 5. My findings at (4) are relevant to consideration of the listed matters at cl 6.21C (2)(d)(iii), (v) and (xi), those being heritage issues, bulk massing and modulation, and streetscape constraints and special character areas respectively. 1. Clause 5.21(2) of LEP 2012 applies as the site is within a flood planning area. In determining the development application, I am satisfied that the amended development is compatible with the flood function and behaviour on the land and will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties. Further, I am satisfied it will not adversely affect the safe occupation and efficient evacuation of people in the event of a flood and incorporates appropriate measures to manage risk to life in the event of a flood. Finally, I am satisfied the proposed development will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks and watercourses. In reaching this state of satisfaction, I have had regard to the report prepared by Tonkin Consulting dated 27 October 2023 which addresses the above matters and concludes that the proposed development is acceptable. 2. The subject site benefits from a Building Information Certificate BC 2023/129 pursuant to ss 6.24 and 6.25 of the EPA Act. I am satisfied that the development application seeks only consent for prospective building works, demolition and use. 3. The Sydney Development Control Plan 2012 (DCP 2012) applies to the site. The Statement of Facts and Contentions notes the compliance of the proposed development with DCP 2012. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act. 4. The development application was notified for 14 days between 21 June and 6 July 2023. One submission was received which raised concerns with regard to construction hours and the need for dilapidation reports. I am satisfied that this submission has been considered by the parties and where appropriate addressed in the annexed conditions. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. The Court notes that: 1. pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant applied to the Respondent, the consent authority, for an amendment to development application No D/2022/588 by including and substituting the amended plans and documents listed below: Item Document Architectural Plans by Michael Robilliard & Associates and Landscape plan by Greenfriends Gardens • Site Plan, Drawing no. 01, Revision F, dated 19 September 2023 • Ground Floor Plan, Drawing no. 02, Revision F, dated 18 September 2023 • First Floor, Drawing no. 03, Revision F, dated 18 September 2023 • Second Floor, Drawing no. 04, Revision F, dated 18 September 2023 • North Elevation, Drawing no. 06, Revision F, dated 18 September 2023 • East Elevation, Drawing no. 07, Revision F, dated 18 September 2023 • South Elevation, Drawing no. 08, Revision F, dated 18 September 2023 • West Elevation, Drawing no. 09, Revision F, dated 18 September 2023 • Section No. 364 366, Drawing no. 11, Revision F, dated 18 September 2023 • Section No. 368 370, Drawing no. 12, Revision F, dated 18 September 2023 • Cross Section, Drawing no. 13, Revision F, dated 18 September 2023 • Demolition Ground Floor Plan, Drawing no. 14, Revision F, dated 18 September 2023 • Demolition First Floor, Drawing no. 15, Revision F, dated 18 September 2023 • Second Floor Demolition, Drawing no. 16, Revision F, dated 18 September 2023 1. • Landscape, Drawing no. 17, Revision F, dated 18 September 2023 • Crossover sections, Drawing no. 18, Revision F, dated 18 September 2023 • Crossover, Drawing no. 19, Revision F, dated 18 September 2023 • Awning, Drawing no. 21, Revision F, dated 18 September 2023 • Awning Detail, Drawing no. 22, Revision F, dated 18 September 2023 • Cleveland Street Shopfront, Drawing no. 23, Revision F, dated 18 September 2023 • Shop Front Detail Plan, Drawing no. 24, Revision F, dated 28/09/23 • Shop Front Detail Elevation, Drawing no. 25, Revision F, dated 18 September 2023 • Shop Front Detail Elevation, Drawing no. 26, Revision F, dated 28 September 2023 • Street Dormer, Drawing no. 27, Revision F, dated 18 September 2023 • Street front Dormer, Drawing no. 28, Revision F, dated 18 September 2023 • Rear Dormer, Drawing no. 29, Revision F, dated 18 September 2023 • Stormwater ground plan, Drawing no. 31, Revision E, dated 18 September 2023 • Waste Management Plan, Drawing no. 33, Revision D, dated 18 September 2023 • 3D Views, Drawing no. 200, Revision D, dated 18 September 2023 • Street View Cleveland, Drawing no. 202, Revision D, dated 18 September 2023 2. External Finishes Schedule by Michael Robilliard & Associates, Rev E, dated 18 September 2023 Shadow Diagrams by Michael Robilliard & Associates • Shadow Diagram (21 June 9am), Drawing no. 150, Revision D • Shadow Diagram (21 June 10am), Drawing no. 151, Revision D • Shadow Diagram (21 June 11am), Drawing no. 152, Revision D • Shadow Diagram (21 June 12pm), Drawing no. 153, Revision D 3. • Shadow Diagram (21 June 1pm), Drawing no. 154, Revision D • Shadow Diagram (21 June 2pm), Drawing no. 155, Revision D • Shadow Diagram (21 June 3pm), Drawing no. 156, Revision D • Shadow Diagram (22 March 9am), Drawing no. 161, Revision C • Shadow Diagram (22 March 12pm), Drawing no. 162, Revision C • Shadow Diagram (22 March 3pm), Drawing no. 163, Revision C Swept Path Diagrams by MLA Transport Planning 4. • Swept Path Analysis – AS2890.1 B85 Vehicles Entering and Exiting – no. 364 Garage, Drawing no. 23027CAD002A-001, Revision A, dated 19 July 2023 • Swept Path Analysis – AS2890.1 B85 Vehicles Entering and Exiting – no. 370 Garage, Drawing no. 23027CAD002A-002, Revision A, dated 19 July 2023 5. Stormwater Management Plan, Drawing no. 301, Revision B by Tonkin 6. Flood Planning Statement by Tonkins dated 27 October 2023 7. BASIX Certificate no. A454193_04 for 364 Cleveland Street, Surry Hills dated 7 September 2023 8. BASIX Certificate no. A454268_04 for 366 Cleveland Street, Surry Hills dated 7 September 2023 9. BASIX Certificate no. A454266_04 for 368 Cleveland Street, Surry Hills dated 7 September 2023 10. BASIX Certificate no. A454192_04 for 370 Cleveland Street, Surry Hills dated 7 September 2023 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application D/2022/588 for the internal and external alterations and additions to 364, 366, 368 and 370 Cleveland Street, Surry Hills, including extensions to the rear of Nos 364, 366, and 368, garage at the rear of Nos 364 and 366, with the continued use of the premises as dwelling houses, subject to the conditions in Annexure marked 'A'. ………………………. D Dickson Commissioner of the Court Annexure A (339234, 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 November 2023