Bakara Developments v Sydney City Council [2005] NSWLEC 567

Land and Environment Court of New South Wales

CITATION : Bakara Developments v Sydney City Council [2005] NSWLEC 567

APPLICANT Bakara Developments RESPONDENT PARTIES : Sydney City Council

FILE NUMBER(S) : 10482 of 2005

CORAM: Tuor C

Appeal :- s96 application to modify consent for mixed used residential/retail building. KEY ISSUES: parking requirements privacy and noise impacts on adjoining residents

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1997

CASES CITED: Superstudio v Waverley Council [2004] NSWLEC 91

DATES OF HEARING: 19-20/09/2005 EX TEMPORE JUDGMENT DATE : 09/22/2005

APPLICANT Mr P Clay, barrister SOLICITORS Macquarie Lawyers

LEGAL REPRESENTATIVES: RESPONDENT Mr A Pickles, barrister SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

22 September 2005

10482 of 2005 Bakara Developments v Sydney City Council

JUDGMENT

1 Commissioner: This is an appeal against the deemed refusal by Sydney City Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act (the Act) to modify the approved development (U01/01276) at 612-622 King Street, Newtown (the site). Background 2 On 9 April 2003 South Sydney Council granted deferred commencement consent subject to conditions for the demolition of the existing building and the construction of a building containing three retail shops and twenty-three residential units. The modifications 3 The s96 application seeks to amend the approved development. A number of the proposed amendments were not opposed by either council or the residents. The changes that were in dispute in the Statement of Issues were: (a) reconfiguration of the basement level parking area to allocate three visitor spaces for residential use and one visitor space to disabled parking for both visitors and residents and for use as a car wash bay; (b) modification of condition (A1)(1)(c)(ii) requiring the installation of two metre high glazed panels on the balconies of all units on levels two and three; (c) deletion of condition (A1)(1)(c)(iv) requiring a 12 m separation distance between the balcony edge and the nearest wall plane of 203 Rochford Street, Erskineville; (d) enlargement of the northern balconies of units 3.02 through to 3.07; (e) conversion of a roof to a terrace adjoining units 3.02 and 3.07. 4 As a result of the amendments agreed between the planning experts, Mr T Moody for the applicant and Mr S Greville for the council, and the Court-appointed noise expert, Mr Atkins, only proposals (a) and (e) remained in dispute between the parties. 5 The residents generally did not support the changes and raised concerns about the process that occurred, particularly that the amendments were already built despite no approval, and that the s 96 application sought to delete changes that the applicant had previously agreed to as part of the consultation process that had occurred prior to the approval of the application. 6 Despite the agreement between the experts, I will address each of the proposed changes and the resident's concerns.