West Apartments v City of Sydney Council [2008] NSWLEC 70

Land and Environment Court of New South Wales

CITATION : West Apartments v City of Sydney Council [2008] NSWLEC 70

APPLICANT West Apartments Pty Ltd PARTIES : RESPONDENT City of Sydney Council

FILE NUMBER(S) : 10908 of 2007

CORAM: Brown C

KEY ISSUES: Appeal :- modification of consent - floor space ratio - height

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 21,22/01/08

EX TEMPORE JUDGMENT DATE : 22 January 2008

APPLICANT Mr P McEwen SC SOLICITORS Blackstone Waterhouse Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Baird, barrister SOLICITORS City of Sydney Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

22 January 2008

10908 of 2007 West Apartments Pty Ltd v City of Sydney Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by the City of Sydney Council (the council) of an application to modify Development Consent D/2002/971 granted on 26 March 2006 for the construction of a mixed use development at 485-501 and 503-511 Wattle Street, Ultimo (the site).

2 South Sydney Council granted Development Consent D/2002/971 prior to the adjustment of local government boundaries that resulted in the site coming under control of the City of Sydney Council. Background 3 Seven s 96 applications have been considered since the original approval with the most recent approval being D/2002/971/F granted on 2 May 2006. This allowed the construction of two mixed use buildings, the retention of the Briscoe heritage building, three retail units, 143 residential units, 2,053.5 sq m of commercial space and 146 on-site car parking spaces. The modification application 4 The subject s 96 modification application (D/2002/971/G) proposes the following modifications: (a) construction of a new additional basement level; (b) relocation of the gym from basement level 3 to basement level 3 and an increase in size; (c) internal alteration of the dwellings resulting in an increase in building footprint; (d) increase in the height of building A between 250 mm and 350 mm and an increase in the height of Building B by 2.85 m; (e) new roof terraces to Buildings A and B; (f) four new two storey two bedroom apartments included in what was previously a void area in Building B; (g) reduction in size of retail units to allow for plant and storage space; (h) new garbage rooms at ground level fronting the through site link; (i) modification of the public domain area adjusting ground levels and design; (j) modification of the unit mix with the conversion of three bedroom units on levels 14 and 15 to one bedroom units with void areas; (k) deletion of the underground link between the Briscoe building and the underground basement area of Building B; (l) modification of condition B(2) - Building Damage Deposit; (m) the modification of condition B(5A) - Floor Space Bonus Deed of Agreement; (n) modification of condition B(87) Site Remediation; and (o) new waste and plant rooms in the Briscoe building. 5 Development of the site is under way and is no longer in accordance with the most recent modification approval in D/2002/971/F. Building A is partially completed but without the tower component and Building B has reached its ultimate height but only through the concrete framework. No internal fit-out or façade work has been undertaken. The height of Building B reflects the height sought in the modification application before the Court. The site 6 The site comprises two parcels of land with frontages to Wattle Street to the east and Blackwattle Lane to the west. It has been cleared except for the three storey Briscoe building. Construction of the proposal is currently under way. The Briscoe building is a brick warehouse built in around 1901 in the Federation warehouse style and is listed as a heritage item. The site is close to central city, Darling Harbour and Cockle Bay. The surrounding area comprises a mix of residential, recreational, educational and commercial uses exhibiting significant variations in scale, height and form.