Land and Environment Court New South Wales Medium Neutral Citation: Bettar v The Council of the City of Sydney [2024] NSWLEC 1510 Hearing dates: Conciliation conference on 11 July 2024 Date of orders: 23 August 2024 Decision date: 23 August 2024 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Consent No. D/2017/1720/N, as previously modified, is modified as set out in Annexure A. (3) Development Consent No. D/2017/1720/N is subject to the consolidated conditions of consent in Annexure B. Catchwords: MODIFICATION APPLICATION – approved mixed use including a hotel development – modifications to the consent including changes to the internal layouts of the ground and basement levels and changes to conditions of consent – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Sydney Local Environmental Plan 2012, cll 6.3, 6.4, 6.11, 6.11A Cases Cited: Bettar v The Council of the City of Sydney [2018] NSWLEC 1429 Category: Principal judgment Parties: Paul Bettar (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Whealy Lawyers (Solicitor) (Applicant) A Simpson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2024/116747 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an application pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. D/2017/1720, as previously modified, originally granted by the Court on 14 August 2018 (Bettar v The Council of the City of Sydney [2018] NSWLEC 1429). The proposal is to modify the development consent by changing the internal layouts of the ground and basement levels and changes to conditions of consent. The site is at 55-57 and 59 Wentworth Avenue, Sydney. 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 11 July 2024. I presided over the conciliation conference. 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. 3. 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 4.55 of the EPA Act to modify the development consent. 4. There are preconditions to the exercise of power to modify the development consent. Application is amended 1. The Council, as the consent authority, consented to the amendment of the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021. The proposal 1. The proposal includes the following changes: * Amended area on basement Level 02 to include walkway within the gross floor area; * Alterations of the internal floor layout of Level 00; * Alterations to the boundary structure and internal layouts of basements Levels 01 – 03, including: * Addition of door to the bathroom on basement Level 01; and * Deletion of "EOT" and replaced with Storage MWC and FWC on basement Level 01. * Deletion of wording of "Store" from basement Level 01 plan; * Deletion of "EOT" and replaced with storage on basement Level 03; * Deletion of wording of "Potential zone for archaeological discovery" from basement Levels 01 – 03 plans; and * Additional information in relation to waste. Jurisdictional matters 1. The site is zoned SP5 Metropolitan Centre, pursuant to Sydney Local Environmental Plan 2012 (LEP 2012). The objectives of the SP5 zone are: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses that are characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, including public transport, walking and cycling. • To promote land uses with active street frontages within podiums that contribute to the character of the street. • To promote the efficient and orderly development of land in a compact urban centre. • To promote a diversity of commercial opportunities varying in size, type and function, including new cultural, social and community facilities. • To recognise the important role that central Sydney's public spaces, streets and amenity play in a global city. • To promote the primary role of the zone as a centre for employment and permit residential accommodation and serviced apartments where the accommodation complements employment-generating land uses. 1. The proposal does not change the approved height of the development. The floor space ratio (FSR) development standards for the site is 8:1. Clause 6.3 of LEP 2012 provides that the FSR for any eligible building may exceed the maximum FSR permitted by an additional amount as specified under cl 6.4. Clause 6.4(1)(a) permits an additional FSR of 6:1 for buildings which will be used for hotel accommodation purposes, thereby the total FSR for the site is 14:1. The proposal has a gross floor area (GFA) of 7,851 m², resulting in a FSR of 14.09:1. 2. Pursuant to cll 6.11 and 6.11A of LEP 2012, the consent authority must not grant consent to a development in respect of a building on a site in Central Sydney that utilises any amount of additional floor space unless it is satisfied that the amount of heritage floor space will be allocated to the site in accordance with the matters set out in clause 6.11(1). In accordance with clause 6.11A(2) of LEP 2012, I accept the parties' agreement and I am satisfied that relevant alternative heritage arrangements have been made with respect to the required allocation of heritage floor space and accordingly, condition 12 of the conditions of consent at Annexure B has been amended to reflect the amended allocation of heritage floor space amount that results from this application. 3. I accept the parties' agreement that the proposed modification application is of minimal environmental impact and that the proposal is substantially the same development as the development for which consent was originally granted. Conclusion 1. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 14 August 2024 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 appeal is upheld. 2. Development Consent No. D/2017/1720/N, as previously modified, is modified as set out in Annexure A. 3. Development Consent No. D/2017/1720/N, is subject to the consolidated conditions of consent in Annexure B. Susan O'Neill Commissioner of the Court Annexure A Annexure B ********** Amendments 30 August 2024 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to Condition 1 of 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: 30 August 2024