Zaki v City of Sydney Council [2015] NSWLEC 1506

Land and Environment Court New South Wales

Medium Neutral Citation: Zaki v City of Sydney Council [2015] NSWLEC 1506 Hearing dates: 11 November 2015 Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Class 1 Before: Tuor C Decision: See paragraph 46 Catchwords: DEVELOPMENT APPLICATION: Child care centre. Adequacy of communal open space and impact on residential amenity. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development. Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Carlos Zaki (Applicant)

City of Sydney Council (Respondent) Representation: Counsel: Mr M Staunton (Applicant)

Ms Berglund (Respondent)

Solicitors: Storey and Gough (Applicant)

City of Sydney Council (Respondent) File Number(s): 10311 of 2015

Judgment 1. Carlos Zaki (applicant) has appealed, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by the Council of the City of Sydney (council) of a development application (D/2014/159) for the "fitout of an existing ground floor and first floor level for a childcare centre" in an existing mixed use building at 513-519 Wattle Street, Ultimo (site). 2. The development application involves the change of use of two existing ground floor commercial tenancies to a child care centre and the use by the centre of an existing communal open space on Level 1 during the child care centre's operating hours. 3. The key issue that remains in dispute between the parties is whether the use of the communal open space on level 1 as a play area results in an unacceptable impact on residential amenity through loss of open space for the occupants of the building and loss of outlook for the units on Level 1.