Lenland Property Developments Pty Limited v Council of the City of Sydney [2013] NSWLEC 1060

Land and Environment Court New South Wales

Medium Neutral Citation: Lenland Property Developments Pty Limited v Council of the City of Sydney [2013] NSWLEC 1060 Hearing dates: 11 December 2012 & Written submissions filed 8 March 2013 Decision date: 12 April 2013 Jurisdiction: Class 1 Before: Dixon C Decision: See Paragraph 22 of Judgment Catchwords: Appeal - development and modification appeals - change of use from commercial to residential unit: - imposition of a condition requiring the registration of a restrictive covenant on title under the Conveyancing Act 1919; rare and exceptional circumstances Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Fortunate Investments Pty Limited v North Sydney Council (2001) 114 LGERA1 MacDonald v Mosman Municipal Council (1919) 105 LGERA 49 North Shore Gas Company v North Sydney Municipal Council [1991] NSWLEC 66 NTL Australia Limited v Willoughby Council [2000] NSWLEC 244 PDP (Darlinghurst Apartments) Pty Limited v Sydney City Council [2005] NSW LEC 41 Category: Principal judgment Parties: Lenland Property Developments Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Solicitors Mr G Green, Pikes & Verekers Lawyers (Applicant) Mr A Singh, Council of the City of Sydney (Respondent) File Number(s): 10817 of 2012 and 10066 of 2013

Judgment 1The applicant, Lenland Development Pty Limited has development consent from Sydney City Council to construct a sixteen storey mixed-use development at 141 Bathurst Street Sydney (DA 2011/1779) (the original consent). The consent was issued on 2 April 2012 and approved retail uses on the ground level, commercial uses on levels 1, 2, 3 and 4 and residential apartments on levels 5 to 15. 2On 25 June 2012 the applicant lodged a second development application (DA955/2012) with the Council for consent to make alterations to the building and change of use of levels 2,3 and 4 from commercial to residential apartments. Relying on s82 (1) of the Environmental Planning and Assessment Act 1979 (the Act) it lodged an appeal under s97 (1) of the Act against the Council's deemed refusal of that application on 10 August 2012 (proceedings number 10817/2012). 3I heard the appeal in respect of proceedings 10817/2012 on 11 December 2012. After a consideration of the evidence and an assessment under s79C of the Act including the relevant planning controls: State Environmental Planning Policy 65, Sydney Local Environmental Plan 2005 cl 5, Sydney LEP 2005 cl 36, Central Sydney Development Control Plan and the town planners joint report and Mr McDonald's further statement I made the following findings: