Frangelli v City of Sydney [2015] NSWLEC 1051

Land and Environment Court New South Wales

Medium Neutral Citation: Frangelli v City of Sydney [2015] NSWLEC 1051 Hearing dates: 12 March 2015 Date of orders: 18 March 2015 Decision date: 18 March 2015 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is upheld. 2. Development application D/2014/1113 for the change of use of an existing commercial unit to a residential apartment at 1/10 Earl Place Potts Point is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, D, 1 and 4. Catchwords: DEVELOPMENT APPLICATION – Conversion of commercial unit to residential unit – Passive surveillance – Internal amenity Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Tamara Barbara Frangelli (Applicant) City of Sydney (Respondent) Representation: Counsel: Mr M Fraser (Applicant) Ms F Berglund (Respondent)

Solicitors: Mr S McDougall, Bray Jackson & Co (Applicant) Mr A Simpson, City of Sydney (Respondent) File Number(s): 10897 of 2014

Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application D/2014/1113 for the change of use of an existing commercial unit to a residential apartment at 1/10 Earl Place Potts Point (the site). 2. The site is located on the ground floor of a mixed use building, with another commercial tenancy on the ground floor, levels of residential units above, and car parking accessed from the rear of the building from Earl Street. There are four storeys on the eastern side with a communal roof terrace on the fourth level; there are seven storeys on the western side of the building and a private roof terrace on the 6th floor facing west. The proposed works include internal fit out for a two bedroom dwelling and provision of a home office and modification of the Earl Place façade to include opaque glazing and an entry to the home office. Following amendments to the plans, the proposed entry to the dwelling is from the lobby to the building, and the entry to the home office is from Earl Place. The subject site includes a courtyard on the ground floor of the internal lightwell, and the proposal includes a privacy sail over the southern part of the courtyard. 3. The Council contends that the proposed development should be refused because it removes the opportunity for passive surveillance to the street; the proposed development has a poor level of amenity due to lack of separation from the public domain and lack of outlook due to a desire to provide privacy and a lack of privacy within the proposed private open space; it worsens the building's relationship with the public domain by removing the potential for a use that would provide passive surveillance to and activation of the street; that given those matters the site is not suitable for the proposed development; and that approval of residential development would not be in the public interest.