Billyard Avenue Developments Pty Limited ATF Billyard Avenue Development Trust v The Council of the City of Sydney [2024] NSWLEC 1825

Land and Environment Court New South Wales

Medium Neutral Citation: Billyard Avenue Developments Pty Limited ATF Billyard Avenue Development Trust v The Council of the City of Sydney [2024] NSWLEC 1825 Hearing dates: 5-6 November 2024 Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development Application No. D/2023/727 for the demolition of existing buildings/trees, construction of two new residential flat buildings (including excavation for a shared basement structure), site landscaping and provision for utilities and stormwater infrastructure at 21C Billyard Avenue and 10 Onslow Avenue, Elizabeth Bay 2011 NSW is refused. (3) The Exhibits are returned, with the exception of Exhibits 2 and A-G which are retained. Catchwords: APPEAL – development application – consent orders – demolition of existing residential flat buildings – construction of new – residential flat buildings – building height contravention – whether in the public interest – whether consistent with the objective of providing for the housing needs of the community – finding that jurisdiction not available – lay objections – view loss – building massing Legislation Cited: Environment Planning and Assessment Act 1979, ss 1.3, 4.15, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Protection of the Environment Administration Act 1991, s 6 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Housing) 2021, Chs 2, 4, Sch 9, s 46 Sydney Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.21, 6.21C, 7.13, Sch 5 Cases Cited: Australian Turf Club v Liverpool City Council (No 2) [2014] NSWLEC 1099 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 GFM Investment Group Pty Ltd in its capacity as Trustee for GFM Home Trust Subtrust No. 7 v Inner West Council [2023] NSWLEC 1112 Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger (2018) 98 NSWLR 526; [2018] NSWCA 178 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Station Lane Pty Ltd v Penrith City Council [2024] NSWLEC 1797 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: Apartment Design Guide July 2015 Land and Environment Court of New South Wales, Practice Note - Class 1 Development Appeals National Housing Supply and Affordability Council, State of the Housing System, 2024 Sydney Development Control Plan 2012 Category: Principal judgment Parties: Billyard Avenue Developments Pty Limited ATF Billyard Avenue Development Trust (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: R Lancaster SC (Applicant) F Berglund (Respondent)