Land and Environment Court New South Wales Medium Neutral Citation: Cross v City of Sydney Council [2024] NSWLEC 1389 Hearing dates: Conciliation conference 28 June 2024 Date of orders: 09 July 2024 Decision date: 09 July 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The appeal is upheld. (2) Development application D/2022/1351, as amended, for the partial demolition of the existing single-storey plus attic dwelling, garden shed, pergola and associated structures, construction of a four bedroom two-storey terrace to a maximum building height of 6.675m, front and rear landscaping, and boundary fencing at 23 Anderson Street, Alexandria, is determined by the grant of consent subject to the conditions of consent at Annexure B. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16,8.7 Land and Environment Court Act 1979, ss 34AA, 34 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.10 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2,4, ss 2.10,2.11 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Sydney Local Environmental Plan 2012, cll 2.7, 6.21C Category: Principal judgment Parties: Bridie Cross (First Applicant) Trevor Lloyd Cross (Second Applicant) City of Sydney Council (Respondent) Representation: Counsel: F Vermeer (Solicitor) (Applicants) A Stipcevic (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) City of Sydney Council (Respondent) File Number(s): 2024/20121 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against City of Sydney Council's refusal of Development Application No. D/2022/1351 (DA). 2. The DA, with modifications incorporated into amending plans, seeks consent for the partial demolition of an existing single storey dwelling and construction of a four bedroom two-storey dwelling at 23 Anderson Street Alexandria, legally identified as Lot 71 in DP1057781. 3. The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 June 2024, and at which I presided. Prior to the conference, the parties had entered an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined matters of relevance in an agreed statement of jurisdictional pre-requisites filed on 19 June 2024. Regarding jurisdiction, and noting this advice, I am satisfied of the following: 1. The proposal is permissible under Sydney Local Environmental Plan 2012 (SLEP). The construction of a dwelling house is permissible with consent in the R1 zone, and demolition of the existing structures may be carried out with development consent under cl 2.7 of the SLEP. The proposal does not breach any development standard in SLEP. The design excellence provisions at cl 6.21C of SLEP apply. I agree with and accept the advice of the parties that the proposed development exhibits design excellence, having regard to the requirements of cl 6.21C(1). The hub of this is the amendments to the proposal to provide for a highly responsive design, including through retention of the existing weatherboard cottage with a connecting two-storey rear addition In coming to this conclusion, I have given consideration to each of the matters arising from the various elements contained in cl 6.21C(2) of SLEP. The table below indicates my conclusions with respect to each of the elements. Here I note the assistance of the parties agreed statement of jurisdictional pre-requisites (par 40) in coming to my conclusions. 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, Retention of the existing timber weatherboard cottage at the front of the site, retains the heritage significance of the building and the site and maintains the streetscape in the heritage conservation area. The two storey addition to the rear is visually subservient from Anderson Street. The form has an acceptable amenity impact on the neighbouring sites. The materiality of the development is required to be submitted under conditions of consent. (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, The appearance of the proposal does not change the streetscape as it retains the existing weatherboard cottage and the two storey addition behind the cottage is visually subservient when viewed from Anderson Street. (c) whether the proposed development detrimentally impacts on view corridors, The proposal does not detrimentally impact any view corridors. (d) how the proposed development addresses the following matters— (i) the suitability of the land for development, The land is of sufficient size and is suitable for this development and there are no additional flooding impacts from this development. (ii) the existing and proposed uses and use mix, The existing use as a dwelling house is retained. (iii) any heritage issues and streetscape constraints, The proposal has addressed the heritage impacts by retaining the timber weatherboard cottage at the front of the site. The addition at the rear is sympathetic and minimises intrusion with the cottage rear and is visually subservient. (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, There are no towers proposed with the development or in vicinity of the site. (v) the bulk, massing and modulation of buildings, The bulk and massing of the addition is acceptable as it will visually subservient behind the existing weatherboard cottage. (vi) street frontage heights The proposal retains the weatherboard cottage and does not impact the street frontage heights. (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, The proposal has minimised the overshadowing, visual and acoustic privacy impacts by retaining the existing building and through the height of building at the rear. The site and neighbouring sites are already overshadowed by the boundary wall of 2 Mitchell Road and the amended proposal minimises the overshadowing impacts to 25 Anderson Street. (viii) the achievement of the principles of ecologically sustainable development, The proposal includes solar panels on the roof of the addition and is more energy efficient than the existing dwelling. (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network There are no changes to pedestrian, vehicular or cycle access to the site. x) the impact on, and any proposed improvements to, the public domain There are no changes to Anderson Street from this proposal. (xi) the impact on any special character area, The site is not part of a special character area. (xii) achieving appropriate interfaces at ground level between the building and the public domain The proposal retains the weatherboard cottage and the addition is visually subservient to the cottage when viewed from Anderson Street. (xiii) excellence and integration of landscape design. The proposal will be required to retain three trees around the site and plant another medium sized tree at the rear yard. This will improve tree canopy cover on the site. 1. With respect to State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP), I note that s 2.48 applies as the proposal would be carried out within 5m of exposed overhead electricity powerlines. I accept that the appropriate referral to Ausgrid has occurred, and no objections were raised to the unamended proposal which had greater potential for impact. The requirements of the Infrastructure SEPP have been met. 2. With respect to s 2.10(3) of State Environmental Planning Policy (Biodiversity and Conservation) 2021, I agree with the parties and am satisfied with respect to the matters at s 2.10(3)(c) and (d). That is to say, I am aware that the proposal involves tree removal within a heritage conservation area. However, this matter has been examined directly by Council's assessment team and in this instance their submission is that the proposed tree removal is quite minor in nature and would not adversely affect the heritage significance of the heritage conservation area. I accept this advice and am satisfied with respect to the matters at s 2.10(3)(c) and (d). 3. Having regard to contamination and Chapter 4 and in particular s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that the respondent has considered whether the site is contaminated and, on account of the site being historically used for residential purposes with no known history of potentially contaminating uses and events, is satisfied that no further investigation of the site is warranted. An 'unexpected finds' condition for land contamination is included in the draft agreed conditions of consent, which requires Council to be notified of any new contamination evidence. On this basis, I am satisfied that the requirements of Chapter 4 of SEPP Resilience and Hazards are met. 4. The parties have also drawn my attention to Chapter 2 of SEPP Resilience and Hazards but advise that there are no matters for consideration which arise because the site is located wholly outside of the Coastal Environment Area (s 2.10) and the Coastal Use Area (s 2.11). 5. Having regard to notification and requirements for a consent authority to take into consideration any submissions made, I am advised that the application was notified in accordance with the requirements and two submissions were received. I am advised one was in support of the DA, and the other raised matters beyond the scope of the DA. It is clear to me that the submissions have been considered. 6. Similarly, the parties have advised me of the consideration given to Sydney Development Control Plan 2012. 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Notation 1. The Court notes that: 1. The Respondent, being The Council of the City of Sydney, as the relevant consent authority has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant's amendment of the subject development application D/2022/1351 in accordance with the plans and documents as outlined in Annexure A (Amended Application), and these documents have been filed with the Court. Orders 1. The Court orders: 1. The appeal is upheld. 2. Development application D/2022/1351, as amended, for the partial demolition of the existing single-storey plus attic dwelling, garden shed, pergola and associated structures; construction of a four bedroom two-storey terrace to a maximum building height of 6.675m, front and rear landscaping, and boundary fencing at 23 Anderson Street, Alexandria, is determined by the grant of consent subject to the conditions of consent at Annexure B. .………………………… P Walsh Commissioner of the Court Annexure A Annexure B ********** 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: 09 July 2024