TM Elizabeth Bay 2 Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1235

Land and Environment Court New South Wales

Medium Neutral Citation: TM Elizabeth Bay 2 Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1235 Hearing dates: Conciliation conference on 13 March 2024 Date of orders: 7 May 2024 Decision date: 07 May 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (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 for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $10,000 within 28 days from the date of these orders being made. (2) The Applicant's written request under cl 4.6 of the Sydney Local Environmental Plan 2012 (the SLEP) seeking a contravention of the development standard for height of buildings set out in cl 4.3(2) of the SLEP is upheld. (3) The appeal is upheld. (4) Development application D/2023/375 for the demolition of the existing structures and construction of a residential flat building with associated landscaping, basement levels and extension and augmentation of infrastructure at 4-4a Barncleuth Square, Elizabeth Bay is determined by the grant of consent, subject to the conditions set out in Annexure B to this agreement. Catchwords: DEVELOPMENT APPLICATION: residential flat building in R1 General Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 29, 37, 38, Dictionary State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 State Environmental Planning Policy Amendment (Housing) 2023, Sch 7A, s 8 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.21C, 7.5, 7.14, 7.19 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015 Category: Principal judgment Parties: TM Elizabeth Bay 2 Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: N Eastman SC (Applicant) J Mort (Solicitor) (Respondent)