Trinvass Pty Ltd v City of Sydney Council [2018] NSWLEC 1691

Land and Environment Court New South Wales

Medium Neutral Citation: Trinvass Pty Ltd v City of Sydney Council [2018] NSWLEC 1691 Hearing dates: Conciliation conference on 17 December 2018 Date of orders: 19 December 2018 Decision date: 19 December 2018 Jurisdiction: Class 1 Before: Walsh C Decision: See [12] below Catchwords: Modification of consent: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Trinvass Pty Ltd (First Applicant) Kelaron Pty Ltd (Second Applicant) City of Sydney Council (Respondent) Representation: Solicitors: D Newhouse, Newhouse and Arnold Solicitors (Applicants) K Morrin, City of Sydney Council (Respondent) File Number(s): 2018/233141 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by City of Sydney Council of modification application No. D/2014/1828/E, made under the provisions of s 4.55(2) and s 4.55(8) of the EPA Act. The modifications are to an approved mixed use development at 216-228A Elizabeth Street, Sydney, also described as Lots 4407 and 4408 DP 1217018 (site). The modifications involve certain alterations to: (1) basement levels (in part concerned with the provision of a retail storage area at Basement Level 1 which brings implication for bicycle parking on this and other levels; and in part related to a minor change in the RL at Basement Level 3) and; (2) certain façade changes related to fire protection. 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon was to uphold the appeal and modify the development consent to accommodate the proposed alterations. 3. My power to dispose of these proceedings in accordance with the parties' decision under s 34(3) is dependent on the satisfaction of any relevant jurisdictional pre-requisites. I have considered the advice of the parties in regard to this, and find positively that the decision is one that the Court can make in the proper exercise of its jurisdictional functions, with the particulars summarised in the following paragraphs. 4. Section 4.55(2)(a) of the EPA Act requires the consent authority to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I have reviewed Moore J's 2015 judgement (Trinvass Pty Ltd and Anor v Council of the City of Sydney [2015] NSWLEC 151) which resulted in the original granting of consent for the development. I have also had a mind to the explanation provided by the parties of the particulars of the changes, and also reviewed the plans. The changes are modest in scope and do not alter the substance of the proposal. I am satisfied that the development as modified would be substantially the same development as originally approved both in quantitative and qualitative terms (Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298). 5. In regard to s 4.55(2)(b) of the EPA Act, I have noted correspondence from Sydney Metro (delegated "rail authority" under State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)), dated 7 November 2018, which has not objected to the modification (conditions in regard to SEPP Infrastructure already apply). 6. The parties have also advised of compliance in regard to s 4.55(2)(c) of the EPA Act in regard to notification. 7. The parties have also advised that, mindful of s 4.55(3) of the EPA Act, proper consideration has been given to the matters referred to in section 4.15 (1) of the EPA Act. In particular I note City of Sydney Council's finding that the development exhibits design excellence and satisfies clause 6.21(3) of the Sydney Local Environmental Plan 2012. 8. For the record I note that Council has further advised as follows (signed s34 Agreement Annexure C): The concurrence authority for the purposes of clause 86 of the State Environmental Planning Policy (Infrastructure) 2007 has been notified as required by clause 120 of the Environmental Planning and Assessment Regulation 2000 as has advised that they consider the additional excavation to be negligible and do not object to the modification application regarding the additional excavation. The development meets the design criteria set out by the Apartment Design Guide, pursuant to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, in relation to storage. The amended proposal complies with the relevant provisions of the Sydney Development Control Plan 2012 in relation to bicycle parking. The development is in the public interest. 1. As the presiding Commissioner, and again in accordance with the advice provided, I am satisfied that the decision of the parties was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act requires me to "dispose of the proceedings in accordance with the decision". 2. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. Modification Application No. D/2014/1828/E to modify conditions 1, 3, 13, 15, 40 and 41 in development consent D/2014/1828/D, in respect of the property known as 216-228A Elizabeth Street, Surry Hills and being Lot 1 DP 63553, Lot 2 DP 63553, Part Lot 1 DP 205102, is determined by approving the modifications as set out in Annexure A. 3. As a consequence of Order (2), Development Consent No. D/2014/1828/E is now subject to consolidated, modified conditions of development consent set out in Annexure B. ………………………. Peter Walsh Commissioner of the Court Annexure A (MC) Annexure B (C) 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: 03 January 2019