Land and Environment Court New South Wales Medium Neutral Citation: Brbot v Council of the City of Sydney [2015] NSWLEC 1075 Hearing dates: 16 March 2015 Date of orders: 25 March 2015 Decision date: 31 March 2015 Jurisdiction: Class 1 Before: Tuor C Decision: Consent Orders (1)The applicant is granted leave to rely on the amended drawings identified in condition (1)(a) of "Annexure A" attached to these Orders. (2)Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs in the amount of $750.00 within 28 days. (3)The appeal is upheld (4)Development consent is granted to Development Application D/2014/936 (as amended) subject to conditions specified in Annexure A to these Orders. (5)Exhibits are to be returned, except Exhibits 1 and 5, which are to be retained on the Court file. Catchwords: CONSENT ORDER: development application for mixed use development. Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 – Design Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Luke Brbot (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Ms S Duggan (Applicant) Solicitors: Mr V Conomos of Conomos Legal (Applicant) Mr A Simpson of Council of City of Sydney (Respondent) File Number(s): 10632 of 2014 Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Council of City of Sydney (council) of a development application for a mixed use development comprising hotel and residential accommodation at 55-57 and 59 Wentworth Avenue, Sydney (site). 2. The applicant has prepared amended plans for which leave was sought and granted. The amended plans address the contentions raised by council. The key changes include the provision of hotel accommodation on levels 1-16 comprising 148 rooms and three residential apartments at level 17. Re-notification of the amended plans concluded on 21 March 2015 and submissions made in response to the original and amended application have been tendered into evidence. 3. As a result of amended plans, conditions and the agreement of the experts, the issues in dispute between the parties have been resolved and they are seeking consent orders from the Court to uphold the appeal and grant consent to the amended application (Exhibit 1). 4. The Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 46]: Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. The documentation tendered to the Court (Exhibit 4) provided details of the notification to the objectors of the Consent Order hearing, an invitation to be heard at the hearing and the terms of the Consent Orders. No objectors chose to be heard. 2. A joint report of planning and urban design experts has been prepared by Mr A Betros and Ms G Morrish, for the applicant and Ms N Elbotaty and Mr A Smith, for the council (Exhibit 3). The joint report addresses how the Contentions have been resolved and concludes that no contentions remain in dispute. 3. In particular, the joint report responds to Contention 9 - Public Interest and the submissions made by the Zara Tower, 61-65 Wentworth Avenue and the Vibe Hotel, 11 Goulbourn Street, as follows: The proposed replacement of outdated commercial buildings with a high quality hotel and residential development is in the public interest noting that the proposal is permissible and compliant with the core LEP FSR and height standards. The high level of internal amenity and lack of external impacts along with the desirable streetscape outcome ensures that the proposal is in the public interest. In particular, the provision of hotel accommodation will assist with the viability of the City Centre and will also assist in meeting the demand for tourist and visitor accommodation in Central Sydney. Response to submissions Vibe Hotel submission: The experts have reviewed the submission prepared on behalf of the Vibe Hotel and it is contended that the upper level of residential apartments would still be likely to retain solar access due to the required separation distance of 12-metres. The subject proposal has setback 6-metres from Foy Lane and development on the Vibe Hotel site would also be required to be setback 6-metres, thereby achieving a combined separation distance of 12-metres If the Vibe Hotel managed to achieve 60-metres, the separation distance and orientation of the proposed units would still be likely to achieve more than 2 hours solar access. Redevelopment of the Vibe Hotel would also be required to consider shadowing to the residential apartments in the Zara building to the south-west of the site. A shadow analysis revealed that redevelopment of the Vibe Hotel could be designed to achieve the permitted FSR of 14:1 whilst also retaining solar access by providing a setback to their north-eastern corner to Goulburn Street/Foy Lane. This would be associated with either additions to the existing hotel building or whether it is redeveloped to a new hotel. Zara tower submission: The experts have reviewed the submission on behalf of the entire building and we agree that issues regarding structural concerns associated with the basement construction are be dealt with by conditions of consent. A dilapidation report and construction management plan is required prior to construction certificate. The experts agree that the proposed building has been stepped back to retain solar access to the living areas of the Zara building. It is also agreed that the protrusions over Wentworth Avenue would not reduce light in mid-winter to the south-eastern facade of the Zara building due to the orientation of the site whereby the Wentworth Avenue facade does not receive any sunlight from 9am in midwinter. The proposed streetwall response with minor protrusions is also compatible with the streetscape along Wentworth Avenue. The mix described in the submission refers to the previous mix. 1. I am satisfied that the Contentions raised by council have been adequately addressed and are resolved and that the consent orders may be granted. Consent orders 1. By consent, the Court orders: 1. The applicant is granted leave to rely on the amended drawings identified in condition (1)(a) of "Annexure A" attached to these Orders. 2. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent's costs in the amount of $750.00 within 28 days. 3. The appeal is upheld 4. Development consent is granted to Development Application D/2014/936 (as amended) subject to conditions specified in Annexure A to these Orders. 5. Exhibits are to be returned, except Exhibits 1 and 5, which are to be retained on the Court file. Annelise Tuor Commissioner of the Court 10632 of 2014 Tuor 31.03.15 (C) (145 KB, pdf) ********** Amendments 21 April 2015 - hyperlink to Annexure A added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2015