Komplete Construction Pty Limited v Council of the City of Sydney [2016] NSWLEC 1138

Land and Environment Court New South Wales

Medium Neutral Citation: Komplete Construction Pty Limited v Council of the City of Sydney [2016] NSWLEC 1138 Hearing dates: 8 December 2015 Date of orders: 14 April 2016 Decision date: 14 April 2016 Jurisdiction: Class 1 Before: Tuor C Decision: (1) The appeal is dismissed. (2) The development application (D/2014/1752) to add one storey with two residential apartments to an approved, but not yet constructed, seven storey mixed use building, at 352 Bourke Street, Surry Hills, is refused. (3) The exhibits, except Exhibit 1, are returned. Catchwords: DEVELOPMENT APPLICATION: additional storey to approved mixed use building, breach of height and floor space ratio standard, design excellence, view impact, residential amenity, public interest Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings Sydney Local Environmental Plan 2012 Cases Cited: Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001 Category: Principal judgment Parties: Komplete Construction Pty Limited (Applicant)

Council of the City of Sydney (Respondent) Representation: Counsel: Mr I Hemmings SC (Respondent)

Solicitors: Mr S Kondilios, Hall & Wilcox Lawyers (Applicant)

Council of the City of Sydney (Respondent) File Number(s): 10506 of 2015

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 the City of Sydney (council) of a development application (D/2014/1752) to add one storey to an approved, but not yet constructed, seven storey mixed use building, approved under DA D/2012/1812 (the Consent) at 352 Bourke Street, Surry Hills (the site). 2. The main issue in the case is whether the breach of the height and floor space ratio (FSR) standards is acceptable.