Land and Environment Court New South Wales Medium Neutral Citation: Diverse Property (Aust) Pty Ltd v the Council of the City of Sydney [2017] NSWLEC 1384 Hearing dates: 13 July 2017 Date of orders: 21 July 2017 Decision date: 21 July 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is upheld. 2. Development Application D/2016/1451 for a Stage 1 concept approval of a mixed use development comprising residential, hotel and retail at 232-240 Elizabeth Street, Surry Hills is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits A, B, C, L and 5, are returned. Catchwords: DEVELOPMENT APPLICATION: Staged application; subsequent stages; integrated development; building envelopes; residential amenity for occupants in terms of acoustics, ventilation, solar access and private open space; amenity impacts including overshadowing of neighbours; objections Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment (Staged Development Applications) Bill 2017 Land and Environment Court Act 1979 Water Management Act 2000 Sydney Local Environmental Plan 2012 Cases Cited: Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135 Category: Principal judgment Parties: Diverse Property (Aust) Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr A Galasso (Applicant) Mr S Nash (Respondent) Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2016/383416 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the Council of the City of Sydney (the Council) of Development Application D/2016/1451 for a Stage 1 concept approval of a mixed use development in Elizabeth Street, Surry Hills (the application). The site comprises three adjoining parcels being 232-236A Elizabeth Street, 238-240 Elizabeth Street and 240C Elizabeth Street. 2. The site is generally rectangular and is adjoined by Elizabeth Street to the west, Reservoir Street to the south and Foster Lane to the north. There is a small inset of land belonging to the Council adjacent to Foster Lane which will likely be incorporated into the site but is not material to the appeal. 3. The site has an area of some 905.6 m². It currently contains commercial buildings up to three storeys comprising a backpackers, laundromat, food and drink premises, offices and shops. A loading area services these commercial premises at the rear with access from Foster Lane. 4. Elizabeth Street is a 6-7 lane major road with dedicated bus lanes and separates the site from the City Circle railway viaduct. A reservation for the CBD Metro tunnel runs partially underneath the site and an existing sewer traverses from the north-east corner of the site through its centre. 5. Surrounding the site are a mixture of residential flat buildings (RFBs) and large commercial buildings generally up to 15 storeys. Adjoining the site to the north at 230 Elizabeth Street is a nine storey commercial building with ground floor retail. A six storey RFB is located opposite to the north-east at 62-64 Foster Street. Adjoining to the east is a six to seven storey commercial building known as 50 Reservoir Street. To the south-east at 33-35 Reservoir Street is a 10 storey RFB with ground floor retail. To the south, on the corner of Elizabeth Street and Reservoir Street, at 242-254 Elizabeth Street, is a 15 storey RFB. 6. The application originally lodged with the Council in October 2016 was for a Stage 1 concept approval for the site comprising demolition of the existing commercial buildings and a 10 storey mixed use development envelope with three levels of basement car parking, ground floor retailing, 42 residential apartments, and 30 hotel rooms. Indicative floor plans were provided for each of the proposed levels. Indicative elevations were also provided as were indicative sections through the hotel component and the residential apartments. 7. Under the Act, staged development is specifically dealt with in Division 2A with the relevant matters for this appeal found at section 83B and 83D: 83B Staged development applications (1) For the purposes of this Act, a "staged development application" is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). 83D Status of staged development applications and consents (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application. 1. The development requires aquifer interference approval under section 91 of the Water Management Act 2000 and as such was classified as Integrated Development in accordance with section 91 of the (EPA) Act. The approval of the Office of Water was granted subject to general terms of approval. 2. The site is also partially located over the proposed CBD Metro rail tunnel. As the development sought concept approval for excavation more than 2 m below ground level and would have a capital investment of more than $200,000, the concurrence of Sydney Trains was required. This was granted subject to general terms of approval in accordance with section 88 of the Infrastructure State Environmental Planning Policy. 3. The site is located within the B4 Mixed Use zone under the Sydney Local Environmental Plan 2012 (the LEP). The proposed development is categorised as mixed use, comprising shop top housing and tourist accommodation, and is permissible in the B4 zone with consent. 4. The buildings on the site are not heritage items and the site is not located within a heritage conservation area although it is proximal to heritage items including the railway viaduct which is a state heritage item. 5. A maximum floor space ratio (FSR) of 5:1 is permissible under clause 4.4 of the LEP and the application proposes an FSR in the order of 5.49:1 utilising a 10% bonus floor space provided for by clause 6.21 of the LEP subject to the development achieving design excellence which first requires a competitive design process. 6. The site is also subject to a maximum height of 35 m under the LEP. The application proposes a maximum height of 35 m and up to an additional 10% bonus resulting in design excellence as provided for at cl 6.21(5) of the LEP. 7. The applicable parts of Clause 6.21 of the LEP read as follows: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design. (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than: (i) 55 metres on land in Central Sydney, or (ii) 25 metres on any other land, (b) development having a capital investment value of more than $100,000,000, (c) development in respect of which a development control plan is required to be prepared under clause 7.20, (d) development for which the applicant has chosen such a process. (6) … (7) A building demonstrating design excellence: (a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or (b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of: (i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map , and (ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2. (8) … (9) In this clause: "building demonstrating design excellence" means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. "capital investment value" has the same meaning as in the Environmental Planning and Assessment Regulation 2000 . "competitive design process" means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy. 1. The site is located within the Surry Hills City Edge locality under section 2.11.1 of the Sydney Development Control Plan 2012 (the DCP). The character statement for this locality identifies a transition between the large scale commercial buildings of the Sydney CBD and the lower scale finer grained mixed uses of Surry Hills. Within the locality, new development is to respond to the scale and proportion of the area's heritage warehouses and provide for employment and business uses. 2. Under the provisions of section 4.2.1 of the DCP, there is a maximum 10 storey height permissible on the site. The development proposes a 10 storey building envelope. The development is also required to provide active frontages, as is proposed, in accordance with the provisions of section 3.2.3 of the DCP. 3. The lodged application was advertised and seven submissions received in response. The submissions objected to the proposal on the following grounds: 1. the existing buildings contribute to the character of the area and should be retained 2. the height, bulk and scale of the envelope is incompatible with the scale of adjoining buildings 3. the development would have adverse impacts on neighbours in terms of visual privacy, loss of natural ventilation, safety and security, and overshadowing, and will restrict outlook from and daylight access to the light well of 50 Reservoir Street 4. there will be increased traffic and parking demand and the development will create a wind tunnel effect on Reservoir Street 5. the area cannot accommodate the density proposed and the hotel use is incompatible with the character of Reservoir Street. 1. In December 2016, the applicant lodged an appeal with the Court against the deemed refusal of the application. 2. In response, the Council contended that the proposal should not be approved on the basis of a number of factors primarily associated with the likely residential amenity of occupants of the proposed dwellings given the site fronted Elizabeth Street and is located within the designated 'City Living' late night trading area. The Council therefore had concerns with noise levels and claimed there was insufficient information to assess acoustic impacts and mitigation. Other concerns related to the number of proposed units which would receive adequate solar access and ventilation or have adequate private open space and storage. 3. In terms of impact on neighbours, concern was raised as to the extent of overshadowing of neighbouring dwellings particularly dwellings located at 33-35 Reservoir Street and 242-254 Elizabeth Street. 4. Secondary issues of concern were with regard to floor to floor heights, flood planning requirements, proposed vehicle access, and inconsistent and insufficient information in which to thoroughly assess the application. It was also claimed that approval would not be in the public interest having regard to the public submissions. 5. The parties undertook conciliation under section 34 of the Land and Environment Court Act 1979 in an attempt to address the Council's contentions. As agreement on an acceptable form of development could not be reached, the conciliation was terminated and the matter set down for hearing. 6. Arising from the conciliation, amended plans were produced and leave was granted by the Court on May 3, 2017 to these plans. They addressed a number of the Council's concerns in terms of floor to floor heights, flood planning, and vehicular access, and provided the additional information to address numerous amenity issues. 7. Prior to the hearing, experts were appointed by both parties with expertise in acoustics, ventilation, and planning and urban design matters. Joint conferral of the experts was undertaken to address the remaining contentions. 8. The hearing was set down for July 13, 2017. 9. On June 15, 2017 the Court of Appeal handed down its decision in the matter of Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135. 10. Prior to the Bay Simmer judgment, the Council had dealt with staged development applications by accepting a Stage 1 development application proposing a building envelope for the proposed development of the site and a subsequent Stage 2 development application dealing with detailed designs of the proposed development within the building envelope approved in Stage 1. 11. In Bay Simmer, the Court of Appeal at [37], [38] and [41] determined that, to accord with section 83B of the Act, staged development applications must comprise more than two development applications (stages) for separate parts of a site where the first stage application did not contain detailed proposals for development. 12. On June 28, 2017, the Council advised the applicant of the deficiencies of the application following the Bay Simmer decision, in that only two applications (stages) were proposed and they were both across the entire site. 13. The applicant subsequently sought leave of the Court to rely on amended plans and documents, to address the issues raised by the Council and the Bay Simmer decision, proposing more than two stages not all encompassing the whole of the site. This leave was granted on 11 July 2017. 14. At the commencement of the hearing, the Court viewed the site and surrounds and heard from one objector who owned floor space within 50 Reservoir Street. He reiterated concerns with impacts on a light well servicing the upper levels of that commercial building. 15. The Court was advised that, as a result of the conferral of experts, there was agreement by the parties to the development, subject to amendments to the application, including to the staging, and to the imposition of agreed conditions. 16. The parties contended that the amended application addressed all of the matters raised in Bay Simmer, all of the outstanding Council contentions and, to the extent that they were reasonable, all of the issues raised by residents. 17. Leave was sought, not opposed and granted by the Court for the applicant to further amend the application accordingly. The application as amended comprises the first of four proposed development applications lodged in stages comprising: 1. Stage 1 - concept approval of a mixed use development comprising residential, hotel and retail (the application the subject of the appeal); 2. Stage 2 – demolition of existing commercial and accommodation buildings on the site, detailed design and construction of a 3 level basement car park and mixed use building comprising residential, hotel and retail; 3. Stage 3 – Detailed design for the provision of public art over part of the site only; and 4. Stage 4 – Use and fitout of the ground floor as commercial/retail tenancies. 1. The application was accompanied by a variety of technical documentation dealing with structural, civil and geotechnical engineering matters (including flooding), ventilation, acoustics, traffic, overshadowing, and solar access. Submissions and evidence 1. Mr Galasso, counsel for the applicant, and Mr Nash, counsel for the Council, both submitted that the application as amended should be approved as it had addressed all of the Council contentions and resident issues, to the extent that was reasonable, and complied with the Bay Simmer decision. 2. In this regard, the proposed conditions of consent agreed between the parties include requiring the staging as proposed by the applicant. The Stage 2 application must also be in accordance with the Stage 1 application including with the building envelopes proposed for each level (including the basement), except where modified by conditions of the consent. 3. In terms of the conditions, in response to advice from the experts and having regard to public submissions of concern with overshadowing, proposed condition 3 requires a design modification to reduce overshadowing impacts to two apartments at 242-254 Elizabeth Street. This affects a portion of the upper level envelope adjoining Reservoir Street in the south-east corner of the site. Specifically, the southern portion of Level 9 is to be moved further to the north to the extent required to provide at least two hours of solar access in mid-winter to apartments 601 and 602 at 242-254 Elizabeth Street. 4. The expert designers agreed that no further modification to the building envelope for the site was reasonable to further minimise overshadowing of apartments at 242-254 Elizabeth Street as the number of non-compliant apartments would now meet the requirements of the controls. Furthermore, there were no reasonable design alternatives which would not result in overshadowing of all of the apartments at 33-35 Reservoir Street given the low rise nature of that RFB relative to the height permissible on that site and on the appeal site. 5. It was also noted at the site visit that the light well at 50 Reservoir Street was not only opened to its western side fronting the site but was also open to the sky, at least to the upper levels including to the objector's floor. Therefore whilst there may be some loss of sunlight from the side opening of the light well, its primary function of providing light from above to the commercial tenancies below would still be met. 6. The agreed proposed conditions of consent also require a competitive design process to achieve design excellence as required by cl 6.21 of the LEP. The applicant provided a design excellence strategy for the site and a condition requires that the design process be conducted prior to the lodgement of the Stage 2 development application. It is therefore a requirement of the approval that the detailed design of the development exhibits design excellence in accordance with the provisions of the LEP. If not, then the bonus floor space ratio and height sought by the applicant would not be able to be achieved. 7. Irrespective, the maximum height of future development must not exceed 35 m and the parapet height is to match that of 230 Elizabeth Street with the only structures permitted above the parapet but below the 35 m height limit being lifts, stairs, plant and common open space structures. 8. There is also a requirement that the residential components of the Stage 2 development application be designed generally in accordance with the principles of State Environment Planning Policy No. 65 - Design quality of residential flat development (SEPP65), the Apartment Design Guide (ADG) and the provisions of the DCP. Accordingly, the Council can ensure residential amenity for future occupants will be addressed including in terms of ventilation, adequacy of private open space areas and solar access to living rooms and balconies. Appropriate acoustic and air quality responses will also be required given the site's location. Residential units are prohibited on the ground floor and the mix of apartments must be in accordance with the DCP. 9. The applicant contended that regard had to be had to the site's context and contended that solar performance is maximised to the extent possible. The site is adjacent to a rail corridor and on a major road with substantial RFB development to its south which would be overshadowed by any development compliant with the controls for the site. The proposed height matches the height of the building to the north whilst the building to the east at 33-35 Reservoir Street is underdeveloped in terms of its height. The design of the western facade is limited in its ability to provide balconies given the orientation to a major road. One positive aspect arising out of the joint conferencing was agreed to be the location and disposition of the communal open space. 10. The expert designers had agreed, even before further amendments were proposed by way of modifications to the plans or in the form of conditions, that, whilst the ADG objectives include to minimise overshadowing of adjacent residential buildings, and that there will be overshadowing impacts to 33-35 Reservoir Street, this overshadowing falls within the threshold of the ADG objectives. In other words, the extent of overshadowing is unavoidable for any development of the site in accordance with the planning controls that apply. 11. The ADG acknowledges that achieving the design criteria for private open space and balconies may not be possible in some locations where greater amenity can be achieved along a busy road or rail line by providing other design solutions such as Juliet balconies. In these situations, a departure from the design criteria may be supported in the event that other amenity benefits for occupants are provided in the development. In this regard, the expert planners agreed that communal open space has been provided on the podium and rooftop levels which exceeded the design criteria by some 55% which partially offsets the private open space deficiencies. 12. The planners also concluded that, subject to appropriate detailed design considerations in future stages, residential development could front Elizabeth Street and still achieve the objectives of SEPP65, the ADG and the Council's development controls for the B4 Mixed Use zone. Also that the building envelope plans as amended were acceptable insofar as they provide the parameters for the built form in any Stage 2 application. 13. The Council accepted that the development would be in the public interest subject to the amendments proposed by the experts as reflected in the amended plans and in the proposed agreed conditions of consent. 14. These conditions include the requirement for a Plan of Management (PoM) for the hotel aspect of the development at Stage 2 to meet the provisions of the DCP at section 4 which deals with tourist accommodation. As required by cl 4.4.8.5 (10), the PoM must address the operation of the facility with regard to minimising the impact of the hotel including noise from the premises to adjoining properties, waste management, any proposed shuttle service, the maintenance and cleanliness of the premises, and on-site security. 15. The agreed conditions also require a public art strategy in accordance with the requirements of the DCP and the Council's Public Art Policy. The strategy is to form part of the documentation lodged with the Stage 3 application. The requirement for public art as part of the redevelopment of the site is also to form part of the competitive design process brief of the Stage 2 application and the nominated location on the site is to be determined ahead of the Stage 3 application. 16. Other conditions, which in part respond to issues raised by adjoining neighbours, include the requirement at Stage 2 for the detailed design to be subject to wind assessment to assess any wind impacts on publicly accessible pedestrian spaces, the surrounding streets and neighbouring buildings. An acoustic assessment is also required to ensure that the omission of noise associated with the use of the premises, including from mechanical plant, equipment and air conditioning, complies with noise limits established by the NSW EPA Industrial Noise Policy. 17. Irrespective of the outcome of the required noise assessment, the noise from any use must not be audible within any habitable room in any residential use (ie. dwelling) between the hours of 12 midnight and 7am. 18. In addition, the development is to be is designed to provide onsite loading and servicing for all uses so that such operations are carried out within the confines of the site at all times and do not obstruct other properties or the public way. 19. There are also demolition and construction management plans required which address pedestrian and traffic safety during the demolition and construction phases. 20. Finally, the indicative building envelopes accompanying the Stage 1 application are only to be approved on the basis that the ultimate building design (including services, privacy treatments, shading devices and the like) will be entirely contained within the approved envelope and provide an appropriate relationship with neighbouring buildings. 21. In closing, Mr Galasso submitted that the development complied with s 83 of the Act. The Stage 1 development application set out concept proposals for the development of the site, the applicant had requested that the application be treated as a staged application, and consent for the Stage 1 application will not authorise the carrying out of development without consent being subsequently required following further applications comprising detailed proposals. This included applications for separate parts of the site. 22. He noted that there was a draft bill to be presented to the NSW parliament next month to amend s 83 of the Act being the Environmental Planning and Assessment Amendment (Staged Development Applications) Bill 2017. The intent of the bill is to address the findings of the Court of Appeal in Bay Simmer so that staged development applications comprising an initial concept application and any subsequent detailed application can proceed in the manner intended, and as they did, prior to Bay Simmer. 23. The bill, currently a public consultation draft, is worded such that the provisions proposed will enable staged applications to comprise only two applications, concept and detailed, which could both apply to the whole of the site. 24. Whilst this appeal needs to be determined under the current law, Mr Galasso submitted that it is relevant to note that the application would also comply with the amended provisions should the bill proceed to law in its current form. These provisions also validate any consents, other than that the subject of the Bay Simmer appeal, which have been issued under the existing s 83 provisions. Findings 1. The parties worked at some length with their experts to amend the application to be in a form that satisfied the Council and addressed, to the extent reasonable given the existing controls for the site, the issues raised by neighbours. 2. As a result of these endeavours, all of the contentions raised by the Council were resolved between the parties by the commencement of the hearing, and the issues raised by objectors considered and responded to in an appropriate manner. 3. I have therefore determined that the appeal should be upheld and the development application, as amended, approved subject to the agreed conditions. 4. In coming to that conclusion, I accept that there will be some adverse impacts on neighbours but those impacts are minimised to a reasonable extent given the context, constraints and location of the site. 5. In this regard, there are existing RFBs to the south of the site and therefore overshadowing of some apartments in these RFBs is inevitable. However, the extent of overshadowing has been minimised to achieve compliance with the ADG guidelines to the extent that such compliance is possible given the nature of adjoining development particularly at 33-35 Reservoir Street where the RFB (despite being relatively new) is well under the 10 storey height permissible and apartments and their balconies face north across the site. This may have been an appropriate design response for that site at the time it was developed, given the current low rise development on the appeal site, but it has no regard to the likely and now proposed redevelopment of the appeal site in accordance with the controls. 6. The application was amended and conditions proposed to address the staging and development parameters required under s 83 of the Act as determined by the Court of Appeal in Bay Simmer. 7. The amended application and proposed conditions make it clear that this application is the first in a number of development applications proposed and required for the site and at least one of those applications is for only part of the site. In particular, the proposed Stage 3 development application for art in the development will apply to only a portion of the site whilst Stage 4 is for the detailed fitout only of the ground floor commercial tenancies. 8. The application as required comprises part of a proposed staged development of the site and does not include detailed proposals for developing the site. Therefore it must be and is proposed to be followed by at least two such detailed proposals and it is clear how it is intended to proceed with developing the site. 9. The application includes advice as to the staging and scope of future applications, as is required, and a proposed condition of consent details subsequent stages to ensure approvals proceed in this manner. 10. Approval of the concept proposal in this Stage 1 application therefore does not of itself authorise development. However, it guides and constrains subsequent development of the site in accordance with the requirements of s 83D of the Act which prevents subsequent development applications from being inconsistent with the approval for Stage 1. 11. It is made clear that, in order to achieve any bonus height or FSR envisaged in the Stage 1 application, subsequent application(s) for development of the site need to demonstrate that the development exhibits design excellence in accordance with the provisions of LEP cl 6.21. The process to demonstrate design excellence requires that amenity impacts on neighbours and the public domain are further considered and addressed at the detailed design stage. 12. The Stage 1 application is accompanied by a suite of technical reports and expert assessments, as well as building envelope plans for every level, which demonstrate that the form of development proposed for the site is appropriate and supportable subject to the detailed design that will follow in subsequent development application(s). This is the intent of staged developments, and of first stage applications, in such a process. 13. Whilst the parties do not rely on the draft bill to amend s83 of the Act, I am satisfied that approval of this application as Stage 1 of a staged development is appropriate under both the existing provisions of the Act in accordance with the Bay Simmer decision, and with the foreshadowed amendments to the Act proposed in the draft bill should they become law. 14. I also consider the conditions agreed to by the parties are appropriate to address issues raised by neighbours, insofar as they can reasonably be addressed, whilst reinforcing the provisions of the Act in terms of the requirements of s83. They are to comprise part of the consent that I am issuing accordingly. However, it is noted that proposed condition 22 is the same as proposed condition 16 and proposed condition 25 the same as proposed condition 18. Proposed conditions 22 and 25 have therefore been deleted from the consent. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2016/1451 for a Stage 1 concept approval of a mixed use development comprising residential, hotel and retail at 232-240 Elizabeth Street, Surry Hills is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits A, B, C, L and 5, are returned. ............................ Jenny Smithson Commissioner of the Court 383416.16 Smithson (C) (649 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: 21 July 2017