Land and Environment Court New South Wales Medium Neutral Citation: Environa Studio Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1099 Hearing dates: 20 April 2015 Date of orders: 20 April 2015 Decision date: 20 April 2015 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The applicant be granted leave to rely on the plans specified in condition 1 of Schedule 1A of Annexure "A". (2)The appeal be upheld (3)Development Consent be granted for Development Application No. D/2014/1198 for the adaptive reuse of the existing warehouse building fronting Primrose Avenue, demolition of all other existing buildings and structures on the site, excavation and construction of a new development comprising 41 residential units within four buildings, basement car parking for 39 cars, a private pedestrian pathway running from Primrose Avenue to Rosebery Avenue and communal gardens subject to the conditions set out in Annexure "A". (4)Exhibits be returned, except Exhibits 2, 4 and A. Catchwords: CONSENT ORDER: development application for residential flat 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: Environa Studio Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr C McEwen SC (Applicant) Solicitors: Ms D Slimnicanovski of Gadens Lawyers (Applicant) Mr A Hawkes of Council of City of Sydney (Respondent) File Number(s): 10862 of 2014 Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of City of Sydney (council) of a development application (D/2014/1198) for a residential flat development at 23-25 Rosebery Avenue and 12 Primrose Avenue, Rosebery (site). 2. The applicant has prepared further amended plans for which leave was sought and granted. The amended plans address the remaining contentions raised by council in its Amended Statement of Facts and Contentions filed on 18 March 2015 (SoFC). 3. The application for which consent is sought is described in the SoFC, as is the site, its locality, statutory controls and history of the application. The development application is summarised as being for: the adaptive reuse of the existing warehouse building fronting Primrose Avenue, demolition of all other existing buildings and structures on the site, excavation and construction of a new development comprising 41 residential units within four buildings, basement car parking for 39 cars, a private pedestrian pathway running from Primrose Avenue to Rosebery Avenue and communal gardens. 1. As a result of the amended plans, further information, conditions, a Voluntary Planning Agreement (VPA), 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 that the appeal be appeal and consent granted to the application (Exhibit 4). 2. 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 provided details of the notification to the objector of the Consent Order hearing, an invitation to be heard at the hearing and the terms of the Consent Orders. The objector did not choose to be heard. 2. A joint report of the planning experts has been prepared by Mr A Sutherland, for the applicant, and Mr K Ng, for the council (Exhibit 3). The experts agreed response to the remaining Contentions is as follows: Contention 3 – Residential amenity Light and natural ventilation The applicant provided amended drawing 102 Rev E prepared by Environa Studio and dated 26 March 2015 which removed all sliding walls to the 'flexible' bedroom in Unit W1 and Unit W1 is now identified as a studio. The amended proposal generally complies with the 'Apartment Layout' part of the Residential Flat Design Code (RFDC) and Parts 4N (Apartment layout) and 4Q (Natural Ventilation) of the Draft Apartment Design Guide (Draft Guide). Acoustic privacy The applicant submitted additional acoustic information to the respondent on 30 March 2015. The additional acoustic information includes sufficient acoustic measures to reduce the impact of noise from the northern neighbours, including an acoustic barrier to the courtyard of Apartment W4 in the heritage warehouse. Accordingly, the amended proposal generally complies with 'Acoustic Privacy' part of the RFDC, Parts 4S (Acoustic privacy) and 4T (Noise and pollution) of the Draft Guide and Clause 4.2.3.11 (Acoustic Privacy) of the Sydney DCP 2012. Contention 4 – Design excellence The applicant provided amended drawing 103 Rev D prepared by Environa Studio and dated 10 March 2015 which details kitchens in both Units W6 and W7. The amended proposal generally complies with SEPP 65, the RFDC, the Draft Guide, Clause 6.21 (Design Excellence) of the Sydney LEP 2012 and the aims of the Sydney LEP 2012 as identified in Clause 1.2(2)(j). Contention 5 – Transport and waste management The applicant provided amended drawings 101 Rev E, 102 Rev E, 103 Rev D, 104 Rev D, 105 Rev D, 120 Rev E and 131 Rev D prepared by Environa Studio and dated 10 and 26 March 2015. The amended plans provide waste chutes to Verde Maisonettes and Verde Terraces. Contention 8 – Public interest Based upon the additional information provided by the applicant, and the resolution of Contentions 3, 4, and 5, the amended proposal is generally in the public interest and is not contrary to Clause 79C(1)(e) of the EP&A Act. 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 be granted leave to rely on the plans specified in condition 1 of Schedule 1A of Annexure "A". 2. The appeal be upheld 3. Development Consent be granted for Development Application No. D/2014/1198 for the adaptive reuse of the existing warehouse building fronting Primrose Avenue, demolition of all other existing buildings and structures on the site, excavation and construction of a new development comprising 41 residential units within four buildings, basement car parking for 39 cars, a private pedestrian pathway running from Primrose Avenue to Rosebery Avenue and communal gardens subject to the conditions set out in Annexure "A". 4. Exhibits be returned, except Exhibits 2, 4 and A. Annelise Tuor Commissioner of the Court 10862 of 2014 Tuor 20.04.15 (CO) (288 KB, pdf) ********** 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: 23 March 2022