Land and Environment Court New South Wales Medium Neutral Citation: Belmont St Pty Ltd v The Council of the City of Sydney [2019] NSWLEC 1474 Hearing dates: Conciliation conference on 8 August 2019; 27 August 2019 Date of orders: 03 October 2019 Decision date: 03 October 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans listed in condition 1(a) in Annexure "A." (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application in the agreed amount of $2,000.00 within 28 days of the making of final orders in the proceedings. (3) The appeal is upheld. (4) Development Application D/2018/1005 for partial demolition of existing structures, subdivision of 311-313 Belmont Street, Alexandria into two allotments, boundary adjustment of the common boundary between 309 and 311 Belmont Street, Alexandria and alterations and additions to existing buildings resulting in a new dwelling on each of the three new allotments at 309, 311 and 313 Belmont Street, Alexandria is approved subject to the conditions contained in Annexure "A." Catchwords: DEVELOPMENT APPLICATION – alterations and subdivision to create three dwellings – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Belmont St Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) M Flick (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sydney City Council (Respondent) File Number(s): 2018/373052 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Belmont St Pty Ltd (the applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by the Council of the City of Sydney (the Council) of development application D/2018/1005 (the application). The application applies to land described as Lot 1 in DP 742502 and Lot 1 in DP 745715 being 309 Belmont Street, Alexandria and 311-313 Belmont Street, Alexandria respectively (the site). 2. The application proposed the partial demolition of existing structures, subdivision of 311-313 Belmont Street into two lots, boundary adjustment, and alterations and additions to existing buildings resulting in a new dwelling on each of the three proposed new allotments up to a height of 3 storeys and with onsite parking. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 5. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site has an area of 412.9m² and is located on the north-western side of Belmont Street with a rear boundary to Belmont Lane. The site contains a single storey dwelling at 309 Belmont Street with no vehicular access to the street and a single storey brick warehouse at 311-313 Belmont Street with vehicular access via Belmont Lane. Both buildings have been interconnected internally through a common boundary wall and approved and used as a single dwelling. 8. The site is within the R1 General Residential zone under the Sydney Local Environmental Plan 2012 (the LEP) and the proposed development is permissible with consent in that zone. 9. The buildings on the site are not identified as heritage items under the LEP but are located within a Heritage Conservation Area (HCA). The dwelling at 309 Belmont Street is identified as a contributory item within the HCA under the Sydney Development Control Plan 2012 (the DCP). The warehouse at 311-313 is identified as a neutral item within the HCA under the DCP. 10. The application was notified and 3 objections were received raising issues with height, access, overshadowing, privacy, noise, traffic, waste management, and the impacts the development would have on the character of the existing buildings on the site. 11. In the SFC, the Council raised concern with: the extent of demolition of heritage fabric of the two existing buildings; the form of the proposed additions; the 3 storey height, design and bulk of the development and the lack of transition to adjoining lower scale contributory dwellings; the setbacks; the proposed parking; and the amenity for future occupants. 12. In response to the contentions raised, the applicant amended the application. The Council was satisfied that the contentions had been adequately resolved and provided a Statement of Reasons with the agreement in this regard, summarised as follows. 13. The amended proposal complies with the 9 metre LEP height control and maximum floor space ratio for the site of 1.25:1. 14. The amended additions are 2 storey and are considered by the Council to be of an appropriate height and bulk for the site and its context and to now provide an appropriate transition to the adjoining contributory building to the south-west. Design changes have been incorporated so that the revised proposal better reflects the streetscape context and is sympathetic to the HCA. 15. Further, the revised first floor side (north and south) setbacks of the addition to the warehouse relate to the existing first floor setback pattern in the street and will ensure that the amenity of the adjoining dwellings, particularly the single storey dwelling to the south-west, is maintained. 16. The removal of the first floor and second floor balconies ensure that overlooking is minimised and the visual privacy of adjoining properties is maintained in accordance with Section 4.1.3 of the DCP. 17. The amended front setback of the first floor addition to 309 Belmont Street will ensure that the visibility of the addition from Belmont Street is reduced. The revised addition responds sympathetically to the form, height, bulk and roof form of the existing contributory building. 18. The submitted solar access diagrams of the amended proposal demonstrate that the development will not cause detrimental overshadowing to the private open space or living room windows of the adjoining dwelling to the south of the development (315 Belmont Street) which meets amenity objectives of Section 4.1.3 of the DCP. 19. The rear building line of 309 Belmont Street is considered acceptable in this instance given the site is adjoined by warehouse buildings to the north and south, which are built to their respective rear boundaries. 20. The amended width of the rear access openings are considered to provide adequate space for the safe manoeuvrability of a vehicle. 21. In terms of heritage considerations, the revised demolition plans show the retention of wall nibs of two existing bedrooms of 309 Belmont Street and the retention of 6 timber trusses within 311-313 Belmont Street. The Council was therefore satisfied that significant fabric of both buildings would be retained in accordance with the requirements of Section 3.9 of the DCP. Further, the revised clerestory addition to the front roof form of the warehouse is sympathetic to the style of the original warehouse building in terms of bulk, form, scale and height. The retention of the warehouse's existing primary frontage window and door arrangement ensures that the original elements of the building are maintained so that legibility of the historic warehouse use continues in accordance with the requirements of Section 3.10 of the DCP. 22. In summary, I accept the parties' advice that the amended proposal, which has been reduced in scale, will not result in adverse environmental impacts and, on balance, is considered to be in the public interest in accordance with s 4.15 of the EPA Act. Further, that the required pre-conditions to the granting of consent have been met. 23. Accordingly, the Court orders: 1. Leave is granted to the Applicant to rely upon the amended plans listed in condition 1(a) in Annexure "A." 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application in the agreed amount of $2,000.00 within 28 days of the making of final orders in the proceedings. 3. The appeal is upheld. 4. Development Application D/2018/1005 for partial demolition of existing structures, subdivision of 311-313 Belmont Street, Alexandria into two allotments, boundary adjustment of the common boundary between 309 and 311 Belmont Street, Alexandria and alterations and additions to existing buildings resulting in a new dwelling on each of the three new allotments at 309, 311 and 313 Belmont Street, Alexandria is approved subject to the conditions contained in Annexure "A." …………………………… Jenny Smithson Commissioner of the Court Annexure A (158 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: 04 October 2019