Land and Environment Court New South Wales Medium Neutral Citation: CPG Darlinghurst Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1252 Hearing dates: Conciliation conference on 10 May 2024 Date of orders: 16 May 2024 Decision date: 16 May 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders: (1) The Applicant's written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) prepared by Ethos Urban, seeking a variation of the development standard for building height set out in clause 4.3 of the SLEP is upheld. (2) The appeal is upheld. (3) Development Application D/2022/831 for the demolition of existing structures and construction of a seven-storey residential flat building comprising 14 apartments with three basement levels, rooftop communal open space, associated landscaping works and vehicle access from Darley Place at 349 Liverpool Street, Darlinghurst NSW 2010 is determined by the grant of development consent, subject to the conditions set out in Annexure "A". (4) The Applicant is to pay the Respondent the sum of $10,000.00 within 28 days from the date of these orders being made in full satisfaction of the following: (a) The costs 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; and (b) In satisfaction of the costs payable pursuant to order 6 of the Amended Notice of Motion filed on 13 December, 2023 and made by the Court on 13 December, 2023. Catchwords: APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38 State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 7A, s 8 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.21C, 7.4, 7.14, 7.19 Category: Principal judgment Parties: CPG Darlinghurst 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): 2023/364561 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of an 8-storey residential flat building comprising 14 apartments at 349 Liverpool Street, Darlinghurst. The development application was refused on 1 November 2023. The appeal is lodged 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. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 May 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 6 May 2024. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include the reduction in floor to floor heights, the lowering of the building so that the height of the parapet aligns with the adjacent heritage item, the reduction in the basement footprint and an increased southern side setback to increase deep soil landscaping, façade changes to achieve a solid to void ratio to achieve consistency with the adjacent heritage item, the introduction of a roof terrace to provide communal open space for the residents and internal layout changes. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Statement of Reasons and a Note on Jurisdiction. The Note on Jurisdiction sets out the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * Residential flat buildings are permissible in the R1 General Residential zone in which the site is located, pursuant to the Sydney Local Environmental Plan 2012 (SLEP). * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 22m, pursuant to cl 4.3 of the SLEP. The proposed maximum height of 23.38m represents a contravention of 1.38m above the numerical standard. The contravention is confined to the lift and stair overrun, which provides access to the communal roof terrace. I am satisfied that the written request dated 5 April 2024, lodged pursuant to cl 4.6 of the SLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for access to the communal roof terrace, which is an appropriate location for communal open space in the context of the small size of the site and the inability to provide the requisite quantum of communal open space at ground level due to the provision of vehicular access. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The proposed development complies with the development standard for floor space ratio in cl 4.4 of the SLEP, as well as with the maximum number of car parking spaces for residential flat buildings in cl 7.4 of the SLEP. * The site on which the development is proposed is located within the Oxford Street and Victoria Street Heritage Conservation Area. I am satisfied, based on the Heritage Impact Statement dated 5 August 2022 and the Heritage Letter prepared by Urbis dated 13 March 2024, that the proposed development will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the SLEP. * Clause 5.21 of the SLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application was accompanied by a Site-specific Flood Assessment Report prepared by GRC Hydro dated 28 March 2023, and a supplementary version prepared by GRC Hydro dated 30 November 2023. Based on those documents, I have considered the matters in cl 5.21(3) of the SLEP and I am satisfied of the matters in cl 5.21(2). * Consistent with the requirements of cl 6.21C of the SLEP and, based on the amended design of the proposed development, the Design Statement prepared by Woods Bagot dated 5 April 2024 (the Design Statement) and the letter from Ethos Urban dated 13 March 2024, I have considered the matters in cl 6.21C(2) and I am satisfied that the proposed development exhibits design excellence. * The site is located on land identified as Class 5 acid sulfate soils, such that cl 7.14 of the SLEP applies. The Report on Geotechnical Investigation prepared by Douglas Partners dated August 2023 confirms that there is no known occurrence of acid sulfate soils, and therefore an acid sulfate soils management plan is not required for the works, consistent with cl 7.14(4) of the SLEP. * Clause 7.19 of the SLEP concerns demolition and applies to the proposed development. I am satisfied that the requirements of cl 7.19(a)(ii) and (b) are met, as the site will be comprehensively redeveloped under the development consent once granted, and adequate measures will be taken to mitigate the visual impacts. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Investigation Report dated September 2023, the site can be made suitable for the development, subject to the carrying out of a number of recommendations, which have been incorporated in the conditions of consent. * Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 30 April 2024. * The amended development application is accompanied by the Design Statement, which is a statement of a qualified designer that verifies the design of the development, as required by s 29 of the EPA Regulation 2021. * Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development, pursuant to cl 8(2A) of Sch 7A. Based on the Design Statement, I have considered the matters required to be considered by s 147(1) of the SEPP Housing. * The proposed development could affect an overhead electricity power line, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and does not object to the proposed development. * The development application was notified between 2 September 2022 and 1 October 2022. I have considered the issues raised in the submissions received in response to the notification, which are summarised in the Statement of Facts and Contentions filed in the appeal proceedings. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. That pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (the EPA Regulation 2021), the Applicant applied to the Respondent consent authority for an amendment to Development Application No D/2022/831 (the Development Application) in accordance with the documents below: Tab 1. Architectural plans Drawing Number Plan name Date Revision Prepared By DA-0000 Cover Sheet April 2024 5 Woods Bagot DA-1100 Site Location April 2024 5 Woods Bagot DA-1101 Site Analysis April 2024 5 Woods Bagot DA-1102 Existing Site Plan April 2024 5 Woods Bagot DA-1103 Proposed Site Plan April 2024 5 Woods Bagot DA-1104 Site Photos April 2024 5 Woods Bagot DA-1105 Existing Building Plan April 2024 5 Woods Bagot DA-2200 Demolition Plan April 2024 5 Woods Bagot DA-2201 Basement 3 April 2024 5 Woods Bagot DA-2202 Basement 2 April 2024 5 Woods Bagot DA-2203 Basement 1 April 2024 5 Woods Bagot DA-2204 Ground Level April 2024 5 Woods Bagot DA-2205 Level 01 April 2024 5 Woods Bagot DA-2206 Level 02 April 2024 5 Woods Bagot DA-2207 Typical Upper – Level 03-06 April 2024 5 Woods Bagot DA-2209.0 Roof Level April 2024 5 Woods Bagot DA-2209.1 Roof April 2024 5 Woods Bagot DA-2200 Area April 2024 5 Woods Bagot DA-2211 Storage April 2024 5 Woods Bagot DA-2212.1 Solar Access Study April 2024 5 Woods Bagot DA-2212 Solar Access & Cross Vent April 2024 5 Woods Bagot DA-2213 Deep Soil April 2024 5 Woods Bagot DA-2214 Total Floor Area April 2024 5 Woods Bagot DA-2601 Adaptables Level One April 2024 5 Woods Bagot DA-3300 Liverpool Street Existing Elevation April 2024 5 Woods Bagot DA-3301 Liverpool St Proposed Elevation April 2024 5 Woods Bagot DA-3302 Darley Place Proposed Elevation April 2024 5 Woods Bagot DA-3303 East Facing Proposed Elevation April 2024 5 Woods Bagot DA-3304 West Facing Proposed Elevation April 2024 5 Woods Bagot DA-3305 Long Section April 2024 5 Woods Bagot DA-3306.1 Short Section April 2024 3 Woods Bagot DA-3306 Short Section April 2024 5 Woods Bagot DA-3307 Height Plane Study April 2024 5 Woods Bagot DA-7702.0 Jun Sun Eye View Proposed April 2024 5 Woods Bagot DA-7702.1 Jun Syn Eye View Proposed April 2024 5 Woods Bagot DA-7702.2 Jun Sun Eye View Proposed April 2024 5 Woods Bagot DA-7702.3 Jun Sun Eye View Proposed April 2024 5 Woods Bagot DA-7702.4 Jun Sun Eye View Proposed April 2024 5 Woods Bagot DA-7702.5 Jun Sun Eye View Proposed April 2024 5 Woods Bagot DA-7702.6 Jun Sun Eye View Proposed April 2024 5 Woods Bagot DA-7703.0 Jun Sun Eye View Existing April 2024 5 Woods Bagot DA-7703.1 Jun Syn Eye View Existing April 2024 5 Woods Bagot DA-7703.2 Jun Sun Eye View Existing April 2024 5 Woods Bagot DA-7703.3 Jun Sun Eye View Existing April 2024 5 Woods Bagot DA-7703.4 Jun Sun Eye View Existing April 2024 5 Woods Bagot DA-7703.5 Jun Sun Eye View Existing April 2024 5 Woods Bagot DA-7703.6 Jun Sun Eye View Existing April 2024 5 Woods Bagot DA-7710.0 Jun Shadows Proposed April 2024 5 Woods Bagot DA-7710.1 Jun Shadows Proposed April 2024 5 Woods Bagot DA-7711.0 Jun Shadows Proposed April 2024 5 Woods Bagot DA-7711.1 Jun Shadows Proposed April 2024 5 Woods Bagot DA-8800 Computer Generated Image April 2024 5 Woods Bagot DA-8801 Materiality April 2024 6 Woods Bagot DA-8802 Computer Generated Image April 2024 5 Woods Bagot DA-8803 High Level Window Detail Elevation April 2024 5 Woods Bagot DA-8804 Adjacency Diagram April 2024 5 Woods Bagot DA-8805 Fire Hydrant & Sprinkler Booster Detail April 2024 4 Woods Bagot DA-8806 Surrounding View Points April 2024 2 Woods Bagot DA-8815 Rooftop Details April 2024 2 Woods Bagot DA-8816 Rooftop Details April 2024 2 Turner Hughes Architect DA-8817 Courtyard Sections April 2024 2 Turner Hughes Architect DA-8818 Extent of Material Detail April 2024 2 Turner Hughes Architect Tab 2. Landscape plans Drawing Number Plan name Date Revision Prepared By LP01-D10722 DA Cover Page 5 April 2024 I Dangar Barin Smith LP02-D10722 DA Ground Floor Landscape Plan 5 April 2024 l Dangar Barin Smith LP03-D10722 DA Landscape Plan 5 April 2024 l Dangar Barin Smith LP06-D10722 DA Canopy Coverpage Plan 5 April 2024 l Dangar Barin Smith LP07-D10722 DA Ground Floor Landscape Volumes Plan 5 April 2024 l Dangar Barin Smith LP08-D10722 DA Details 5 April 2024 l Dangar Barin Smith Tab 3. Civil plans Drawing Number Plan name Date Issue Prepared By C-000 Cover Sheet 7 March 2024 04 Intrax C-0001 General Notes 7 March 2024 04 Intrax C-0002 General Arrangement Plan and Legend 7 March 2024 04 Intrax C-1001 Sediment and Erosion Control Plan 7 March 2024 04 Intrax C-1011 Sediment and Erosion Control Notes and Details 7 March 2024 04 Intrax C-3001 Roadworks and Civil Works Plan 7 March 2024 04 Intrax C-3011 Vehicle Sweptpath Vertical Analysis 21 March 2023 01 Intrax C-3101 Driveway Long Sections 21 March 2023 01 Intrax C-3811 Road Standard Details & Typical Cross Sections 21 March 2023 01 Intrax C-4001 Stormwater Management Plan 7 March 2024 04 Intrax C-4101 Stormwater Catchment Plan 7 March 2024 04 Intrax C-4201 Stormwater Long Section 20 March 2023 01 Intrax C-4301 Stormwater Management Details Sheet 01 of 02 7 March 2024 04 Intrax C-4302 Stormwater Management Details Sheet 02 of 02 7 March 2024 04 Intrax C-4501 Water Quality Details & Music Model 7 March 2024 04 Intrax Other documents Description Date Tab 4. Letter from Ethos urban 13 March 2024 Tab 5. Clause 4.6 variation request – height of buildings prepared by Ethos Urban 5 April 2024 Tab 6. BASIX Certificate number 1323281M_04 prepared by Credwell Energy Pty Ltd 30 April 2024 Tab 7. NatHERS certificate prepared by Credwell Energy Pty Ltd 30 April 2024 Tab 8. Landscape management and maintenance schedule prepared by Dangar Barin Smith April 2024 Tab 9. View Impact Assessment prepared by Ethos Urban 5 April 2024 Tab 10. Visual Impact Images prepared by Urbaine Design Group 11 March 2024 Tab 11. Design Statement prepared by Woods Bagot 5 April 2024 Tab 12. Construction Noise and Vibration Management Plan prepared by PWNA 7 March 2024 Tab 13. Preliminary Construction Traffic Management Plan prepared by Stantec 8 March 2024 Tab 14. Structural Engineers Report prepared by Mance Arraj 13 February 2024 Tab 15. SOFAC Response (Waste) prepared by MRA Consulting Group 8 February 2024 Tab 16. Report on Preliminary Site (Contamination) Investigation with Limited Sampling prepared by Douglas Partners 7 September 2023 Tab 17. Historical Archaeological Research Design & Excavation Methodology prepared by Urbis 1 March 2024 Tab 18. Historical Archaeological Impact Assessment prepared by Urbis 1 March 2024 Tab 19. Clarification in response to Statement of Facts and Contentions Contention 5(d) prepared by Woods Bagot 16 February 2024 Tab 20. Supporting Heritage letter prepared by Urbis 13 March 2024 Tab 21. Contention 10(d) – 'Stop and Go' traffic light system prepared by Stantec 8 March 2024 Tab 22. Acoustic Review of Amended Design prepared by PWNA 6 December 2023 1. That pursuant to s 38(1) of the EPA Regulation 2021, the Respondent consent authority has approved the application to amend the Development Application. 2. The Applicant has filed the amended plans and documents listed in the table at [8](1) with the Court on 3 May 2024. 1. The Court orders that: 1. The Applicant's written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) prepared by Ethos Urban, seeking a variation of the development standard for building height set out in clause 4.3 of the SLEP is upheld. 2. The appeal is upheld. 3. Development Application D/2022/831 for the demolition of existing structures and construction of a seven-storey residential flat building comprising 14 apartments with three basement levels, rooftop communal open space, associated landscaping works and vehicle access from Darley Place at 349 Liverpool Street, Darlinghurst NSW 2010 is determined by the grant of development consent, subject to the conditions set out in Annexure "A". 4. The Applicant is to pay the Respondent the sum of $10,000.00 within 28 days from the date of these orders being made in full satisfaction of the following: 1. The costs 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; and 2. In satisfaction of the costs payable pursuant to order 6 of the Amended Notice of Motion filed on 13 December, 2023 and made by the Court on 13 December, 2023. ………………………. J Gray 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: 16 May 2024