Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1176

Land and Environment Court New South Wales

Medium Neutral Citation: Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1176 Hearing dates: 10, 11 September 2013 Decision date: 24 September 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. Finding that extra floor level containing two additional apartments is not appropriate for its context. 2. Timetable for filing of amended plans and agreed conditions to include modifications not in dispute. Catchwords: MODIFICATION: application to modify development consent for 8 level residential apartment building with ground floor retail by adding extra floor level containing two additional apartments and a reduction in the floor to ceiling heights - exceedance of height and floor space ratio requirements - impact on desired future character of the area Legislation Cited: Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2012 Cases Cited: Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J Category: Principal judgment Parties: Haralambis Management Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Ms S Duggan SC (Applicant) Mr A Hawkes, solicitor (Respondent) Wilshire Webb Staunton Beattie Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10487 of 2013

Judgment 1COMMISSIONER: This appeal relates to the refusal by the Council of the City of Sydney of an application to modify Development Consent D/2012/321, under s 96(8) of the Environmental Planning and Assessment Act 1979, for an 8 level residential apartment building including ground floor retail and basement parking at 143-151 Bayswater Road, Rushcutters Bay (the site). 2The modification application provides for a number of modifications, many not opposed by the council. The disputed modification provides for an extra level (Level 9), containing 2 additional apartments and a reduction in the floor to ceiling heights of the lower residential levels. 3The council maintains that the application should be refused as the modification: 1. exceeds the maximum height requirement, and 2. exceeds the maximum floor space ratio (FSR) requirement. 4The council did not press the contention that the reduced floor to ceiling height provides unacceptable amenity for the apartments.