Belvoir Developments Pty Ltd v City of Sydney Council [2017] NSWLEC 1702

Land and Environment Court New South Wales

Medium Neutral Citation: Belvoir Developments Pty Ltd v City of Sydney Council [2017] NSWLEC 1702 Hearing dates: 31 May 2017 Date of orders: 31 January 2018 Decision date: 08 December 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: Directions: See [108] Catchwords: Development Application: residential flat building, heritage impacts; apartment design, deep soil requirements, car parking. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environment Plan 2012 State Environmental Planning Policy No 65 Design Quality of Residential Flat Development Cases Cited: GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 Texts Cited: Sydney Development Control Plan 2012 Apartment Design Guide (ADG) Category: Principal judgment Parties: Belvoir Developments Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel:

M Staunton (Applicant) P Clay (Respondent)

Solicitors:

Jaku Legal(Applicant) City of Sydney Council (Respondent) File Number(s): 2017/301530 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Belvoir Developments Pty Ltd ('the Applicant') has appealed the deemed refusal by the Council of the City of Sydney ('the Respondent') of its development application (D/2016/512) for demolition of an existing building and construction of a part 4/part 5 storey residential flat building with basement car parking. 2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 ('EP&A Act'). 3. The proposed development is located at 8-10 Fitzroy Place, Surry Hills ('the Subject Site'), which has an area of 658.8m2, and is currently occupied by a single story brick warehouse/workshop building on its western side. This building is attached to a two-storey brick building on the eastern side of the Subject Site. Commercial premises currently operate in the ground floor of the both buildings. 4. The appeal was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 ('the LEC Act') on 30 January 2017. During the site inspection undertaken as part of the s 34 conciliation, submissions were received from the following objectors: 1. Mr Daniel Haertch, the owner of a building at 5 Fitzroy Place, located opposite a portion of the Subject Site; 2. Mr Ronen McSweeny and Mr Brent Alexander, owners of dwellings within Figtree Gardens, a property with frontage to Bourke St, but the rear of which is located at the end of Fitzroy Street; 3. Mr Andrew Coburn, of Mecone Planning, on behalf of residents of a property adjoining the rear of the Subject Site in 177A Albion St; and 4. Mr Kevin Snell, the owner of a property adjoining the rear of the Subject Site in Albion St. 1. Leave was granted for the admission of material from the s 34 conciliation conference in this hearing. This included an agreed set of notes summarising submissions from the objectors which was tendered as evidence by the Respondent during the hearing. 2. The issues raised by the objectors included the height, bulk and scale of the proposed development, its floor space ratio, car parking provisions, privacy and landscaping. 3. During the hearing, Mr Haertch and Mr Coburn gave further evidence in which they reiterated their specific concerns in relation to the proposed development. 4. Mr Haertch noted that he held a consent for a development on his property, and that his intent was to use the dwelling to be constructed under that consent as his residence. He said that his concerns relating to the development on the Subject Site included: 1. the bulk and scale of the proposed development and its impact of the streetscape in Fitzroy Place; 2. potential overshadowing impacts of the proposed development on this property and a loss of solar access to the lower floors of his proposed development; and 3. the adequacy of privacy treatments in the proposed development, and their capacity to mitigate potential noise impacts. 1. Mr Haertch said that, in his view, the proposed development should be limited to a street presentation of 2/3 storeys. 2. Mr Coburn said that his concerns related to: 1. the potential impact of the proposed development on the Bourke St North Heritage Conservation Area ('HCA'); 2. potential privacy impacts on the owners of 177A Albion St; and 3. potential construction impacts on a stone wall at the boundary between the Subject Site and 177A Albion St. 1. The Applicant had been granted leave to rely on amended plans by order of the Court on 17 March 2017 and in accordance with the Applicant's Notice of Motion dated 13 March 2017. 2. During the hearing the Applicant sought leave to rely on further amended plans. These were tendered during the hearing within the joint report of the urban design experts, Mr Rohan Dickson, for the Applicant, and Ms Allison Cronin, for the Respondent, and leave was granted. 3. The amended plans seek consent for a total of 18 units and 14 car spaces.