Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186

Land and Environment Court New South Wales

Medium Neutral Citation: Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186 Hearing dates: 10-12 February and 10 May, 2016 Date of orders: 24 May 2016 Decision date: 24 May 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. 13/171 for the demolition of the existing industrial building and construction of a three to five storey residential flat building with a basement level at 10-12 Morgan Street, Botany, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1, A, B, M and N, are returned. Catchwords: DEVELOPMENT APPLICATION: construction of a residential flat building; whether the proposal is compatible with the streetscape and surrounding development; design excellence; parking; precedent. Cases Cited: Terrace Tower Holding Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 Category: Principal judgment Parties: Turner Architects (Applicant) City of Botany Bay Council (Respondent) Representation: Counsel: Mr A. Pickles SC (Applicant) Ms H. Irish barrister (Respondent)

Solicitors: Bartier Perry (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 11100 of 2014

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 13/171 for the demolition of the existing industrial building and construction of a three to five storey residential flat building with a basement level (the proposal) at 10-12 Morgan Street, Botany (the site) by the City of Botany Bay Council (the Council). 2. The appeal was subject to mandatory conciliation on 23 March 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 11 November 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 18 November 2015 for the applicant to rely on the amended proposal (Revision 6). The Council filed an amended statement of facts and contentions on 10 December 2015. 3. The applicant was granted leave by the Court at the commencement of the hearing to rely on further amended plans, (Revision 9) (exhibit A) and the Council was granted leave to tender a further amended statement of facts and contentions (exhibit 1).