Jaguar Investments Pty Ltd v City of Sydney [2005] NSWLEC 337

Land and Environment Court of New South Wales

CITATION : Jaguar Investments Pty Ltd v City of Sydney [2005] NSWLEC 337

APPLICANT Jaguar Investments Pty Ltd

PARTIES : RESPONDENT City of Sydney

FILE NUMBER(S) : 11402 of 2004 & 10029 of 2005

CORAM: Tuor C.

Building Application - Development Consent :- s96 application for car stacker impact of additional car spaces KEY ISSUES: allocation of residential and visitor car spaces impact of car stacker

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Draft State Environmental Planning Policy No 66 - Integration of Landuse and Transport South Sydney Local Environmental Plan 1998

CASES CITED: Ireland v Cessnock City Council [1999] NSWLEC 250

DATES OF HEARING: 23/03/2005

DATE OF JUDGMENT: 06/24/2005

APPLICANT Mr C McEwen SC SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES:

RESPONDENT Mr A Galasso, Barrister SOLICITORS City of Sydney

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

24 June 2005

11402 of 2004 and 10029 of 2005 Jaguar Investments (NSW) Pty Limited v City of Sydney

JUDGMENT Introduction 1 The proceedings are two separate appeals. Appeal 10029 of 2005 relates to the deemed refusal of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act). The application is to modify condition 25 of a development consent (No. U01-01310) to permit a car stacker and 10 additional residential car spaces. 2 The original application was approved by South Sydney Council (now the City of Sydney) on 26 June 2002 for the conversion of the existing Rex Hotel to residential apartments and other ancillary alterations and additions at 50 - 58 Macleay St. Potts Point (the site). 3 Appeal 11402 of 2004 relates to the refusal by the City of Sydney (the council) of a Building Certificate under s149D of the EPA Act for the works sought in Appeal 10029 of 2005. 4 The appeals were heard concurrently and the parties agreed that if Appeal 10029 of 2005 was upheld then Appeal 11402 of 2004 should also be upheld. The modification application 5 Condition 25 states: "That a maximum of 148 basement car spaces shall be provided. The spaces shall be located as follows: 122 residential parking spaces; two car wash bays; 13 visitors spaces; 7 retail parking spaces and 4 community parking spaces all located within the basement levels of the approved development. The four (4) community spaces shall be dedicated to the City of Sydney at no cost and shall be exclusive of any spaces provided a ground level. The car stacker shown on plans numbered S96.4.01(1) and S96.4.02(1) dated 21 August 2003 is NOT APPROVED (Amended 3 November 2003)." 6 The proposed modification seeks to delete the words "The car stacker shown on plans numbered S96.4.01(1) and S96.4.02(1) dated 21 August 2003 is NOT APPROVED". The proposed modification also seeks to provide a maximum of 158 car spaces with 132 spaces allocated for residential parking. The applicant proposes that condition 25 now reads: 7 "That a maximum of 158 basement car spaces shall be provided. The spaces shall be located as follows: 132 residential parking spaces; two car wash bays; 13 visitors spaces; 7 retail parking spaces and 4 community parking spaces all located within the basement levels of the approved development. The four (4) community spaces shall be dedicated to the City of Sydney at no cost and shall be exclusive of any spaces provided a ground level". 8 The car stacker provides parking for 14 cars but is located where four spaces were approved. Therefore it provides a net increase of 10 spaces. During the hearing the Applicant agreed that one existing car space should be allocated as a car stacker waiting space, which would result in a net increase of 9 spaces. Planning Framework