Khoury v Council of the City of Sydney [2011] NSWLEC 1021

Land and Environment Court New South Wales

Medium Neutral Citation: Khoury v Council of the City of Sydney [2011] NSWLEC 1021 Hearing dates: 16 December 2010 Decision date: 11 February 2011 Before: Pearson C Decision: 1. Appeal dismissed. 2. Development Application D/2009/2021 for construction of a mixed use four storey building comprising a commercial office suite, residential apartments, ancillary car parking and strata subdivision, at 56-58 Wyndham Street Alexandria, is refused. 3. The exhibits are returned except for exhibits A, F and 2. Catchwords: DEVELOPMENT APPLICATION - mixed use development Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy 65 - Design Quality of Residential Flat Development South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997 - Urban Design Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Category: Principal judgment Parties: Michael Khoury (Applicant) Council of the City of Sydney (Respondent) Representation: Mr B Goldsmith (Agent) (Applicant) Mr A Hawkes (Solicitor) (Respondent) File Number(s): 10783 of 2010

Judgment 1Commissioner : This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of development application D/2009/2021 seeking consent to the construction of a mixed use four storey building including roof top terrace comprising a commercial office suite, five residential apartments, ancillary car parking and strata subdivision, at 56-58 Wyndham Street Alexandria (the site). 2The development application was amended during the course of an application for review under s82A of the Act. The application before the Court proposes a building with a ground floor commercial suite and four residential apartments above, with a total gross floor area of 393sqm and floor space ratio of 1.84:1, and a total height to a maximum of 13.7m. On 18 October 2010, after the Class 1 appeal was lodged, the Council resolved to uphold the refusal of development consent. 3The issues between the parties relate to consistency with the zoning objectives; compliance with the applicable height and floor space controls; amenity requirements relating to building separation, solar access and cross flow ventilation; and noise.