Land and Environment Court New South Wales Medium Neutral Citation: Hraklis Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1693 Hearing dates: Conciliation conference on 7 March 2018 Date of orders: 07 March 2018 Decision date: 08 March 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [9] below Catchwords: DEVELOPMENT APPLICATION - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Sydney Local Environmental Plan 2012 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Hraklis Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Solicitors: M Sonter, Mills Oakley (Applicant) T Ward, Council of the City of Sydney (Respondent) File Number(s): 2018/273838 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of the existing warehouse building and construction of a 4 storey commercial building with ground floor retail at 15 Bourke Road, Alexandria. The applicant, Hraklis Pty Ltd ("Hraklis") lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act") on 6 September 2018 following the Council of the City of Sydney's refusal (on 13 June 2018) of the development application (D/2018/56) seeking the same. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, were made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("Court Act") between the parties, which was held on 7 March 2019. I presided over the conciliation conference. 3. Prior to the conciliation conference, leave was granted to Hraklis to amend the development application the subject of the appeal. The amended development application, which is the subject of the agreement and the orders below at [9], is for a part 4, part 5-storey commercial building comprising 1559.9m2 of commercial space over 4 levels, a ground level café of 76m2 fronting Bourke Road and first floor above-ground parking for 8 cars, a service bay and motorcycle parking. The amended development application does not contain any basement parking. 4. At the conciliation conference, an agreement under s 34(3) of 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 is for leave to be granted to rely on amended documents in support of the amended development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 5. As the presiding Commissioner, I was satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction as: * The development is for the purposes of office premises and food and drink premises, which are permissible uses in the B7 Business Park zone pursuant to the Sydney Local Environmental Plan 2012 ("SLEP 2012"). * The proposed development benefits from cl 6.14 of the SLEP 2012, which allows additional floor space of 0.5:1 if certain preconditions are met. As a result, the applicable FSR standard for the proposal is 2:1, with which the proposal development complies. I am satisfied that this additional floor space is permitted to allow the standard of 2:1 to apply pursuant to cl 6.14 because: 1. The development is consistent with the objectives of cl 6.14 by providing a Voluntary Planning Agreement that entails, firstly, the dedication of two areas of land to the Council to improve the public domain and provide a liveable green network within Green Square and secondly, contributions for works to provide Green Square community infrastructure. 2. Consistent with subcll 6.14(3)(b) and (c), this infrastructure is reasonably necessary for the Council to achieve the liveable green network sought in Pt 5.8.3.3 of the Sydney Development Control Plan 2012 ("SDCP 2012"), including the public domain setbacks and open space outlined in the maps referred to therein. 3. The proposed development is consistent with the objectives of cl 6.14 because it presents to the streetscape as a four-storey building, which reflects the four-storey desired character of the locality. 4. For the reasons outlined in the Statement of Environmental Effects dated August 2018, I am satisfied that the proposal provides for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 18m, pursuant to cl 4.3 of the SLEP 2012. The proposed maximum height of 19.5m represents a contravention of 1.5m above the numerical standard. The contravention is confined to the fifth storey which is recessed to render it recessive from the street frontage. I am satisfied that: 1. The written request, lodged pursuant to cl 4.6 of the SLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises because the flood prone nature of the site means that in order to accommodate a basement car park, an access ramp with a crest of 1.75m would be required, which would create an adverse streetscape outcome. Therefore, the subject proposal provides parking at the first floor and the additional height allows for a fifth floor to accommodate the complying floor space within a reduced building footprint that allows for deep soil planting. 2. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance, and the breach of the standard has negligible adverse impact. 3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard. * The amended documents demonstrate that the site is suitable for development in accordance with State Environmental Planning Policy No 55—Remediation of Land. * The amended proposal complies with cl 6.21 of the SLEP 2012 with regards to design excellence. * The requested variation to the height of buildings development standard is upheld because the consent authority is satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6 of the SLEP and the proposed development is in the public interest because it is consistent with the objectives of the height development standard and the B7 Business Park zone. * The amended proposal does not result in adverse environmental impacts subject to conditions of consent and is in the public interest. 1. There were no other jurisdictional prerequisites that were identified by the parties as matters that need to be satisfied prior to a grant of development consent. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the Court Act requires me to "dispose of the proceedings in accordance with the decision". The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court orders: 1. The Applicant is granted leave to rely on the following amended drawings (as referred to in condition 1 of Annexure "A") and documents for the purpose of the development application: 1. Drawing 110, Ground floor plan, Revision 12, dated 22 February 2019; 2. Drawing 200, South elevation, Revision 12, dated 22 February 2019; 3. Drawing 200a, South elevation (post adaptation to offices), Revision 12, dated 22 February 2019; 4. Drawing 202, East elevation, Revision 11, dated 22 February 2019; 5. Drawing 202a, East elevation (post adaptation to offices), Revision 11, dated 22 February 2019; 6. Drawing 700, GFA calculations, Revision 10, dated 6 March 2019; 7. Drawing 701, Land dedication plan, Revision 2, dated 1 March 2019; 8. Summary Report – Environmental Site Assessment Open Space Areas prepared by Environmental Consulting Services dated 28 February 2019; 9. Open space portion of 15 Bourke Road, Alexandria NSW Site Audit Report prepared by GHD dated March 2019. 10. Site Audit Statement No 041-2128009R A consolidated set of plans, including those listed above, are contained in Annexure "B". 1. The Applicant's written request under clause 4.6 of Sydney Local Environmental Plan 2012 seeking a variation of the development control for height of buildings set out in clause 4.3 of the Sydney Local Environmental Plan 2012 is upheld. 2. The appeal is upheld. 3. Development application D/2018/56 lodged on 24 January 2018 for demolition of the existing warehouse building and construction of a four storey commercial building with ground floor retail and basement parking is approved subject to the conditions contained in Annexure "A". ………………………. Commissioner Gray Annexure A (442 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: 11 March 2019