BKA Architecture v Council of the City of Sydney [2016] NSWLEC 1492

Land and Environment Court New South Wales

Medium Neutral Citation: BKA Architecture v Council of the City of Sydney [2016] NSWLEC 1492 Hearing dates: 14 October 2016 Date of orders: 26 October 2016 Decision date: 26 October 2016 Jurisdiction: Class 1 Before: Tuor C Decision: See paragraphs 38 and 39 Catchwords: DEVELOPMENT CONSENT: modification, exceed floor space ratio standard, impact on heritage significance of item. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012 Cases Cited: Parker Logan Property Pty Ltd v Council of City of Sydney [2016] NSWLEC 1333 SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 Category: Principal judgment Parties: BKA Architecture (Applicant)

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

Dr J Smith (Respondent)

Solicitors: Jaku Legal (Applicant)

Council of the City of Sydney (Respondent) File Number(s): 2016/159333 and 2016/187506

Judgment 1. BKA Architecture (applicant) has lodged the following appeals under s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act): 1. Appeal 2016/159333 is against the Council of the City of Sydney's (council) determination of modification application D/2015/326/A under s96(2) of the EPA Act (s96A Application); 2. Appeal 2016/187506 is against the deemed refusal of modification application D/2015/326/B under s96(2) of the EPA Act (s96B Application). 1. The parties have agreed that the appeals may be heard together. The main issues that remains in dispute are whether: 1. the increase in floor space ratio (FSR) in excess of the development standard in Sydney Local Environmental Plan 2012 (LEP) is acceptable (both appeals); and 2. the proposed habitable attic spaces will have an unacceptable impact on the heritage significance of the item (Appeal No. 2016/187506).