Land and Environment Court New South Wales Medium Neutral Citation: Lan v The Council of the City of Sydney [2020] NSWLEC 1015 Hearing dates: Conciliation conference on 20 November 2019 Date of orders: 15 January 2020 Decision date: 15 January 2020 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) The applicant is granted leave to amend the development application and rely upon the plans referred to in Condition 1 of Annexure "A". (2) The appeal is upheld. (3) Development Application D/2018/1368 for alterations and additions to the existing building and change of use to a single dwelling is approved subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – alterations to, and change of use of, existing terrace – 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 (Building Sustainability Index: BASIX) 2004 Sydney Local Environmental Plan 2012 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Eddie Lan (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) P Canning (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Sydney City Council (Respondent) File Number(s): 2019/96912 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Eddie Lan (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by the Council of the City of Sydney (the Council) of development application D/2018/1368 (the application). 2. The application seeks consent under the EPA Act for alterations and additions to an existing building and change of use of that building from mixed use to a single dwelling. The building is situated at Lot 1 DP 1043674 being 383 Riley Street, Surry Hills (the site). 3. Specifically, the application the subject of the appeal proposes alterations and additions to an existing Victorian terrace comprising a shop with an upstairs residential dwelling to create a larger single residential dwelling with the use of the site being for this residence only. 4. The site is identified as a heritage item (I1615) under the provisions of the Sydney Local Environmental Plan 2012 (the LEP) and is located within the C65 - Little Riley Street Heritage Conservation Area (HCA) under the LEP. The site is identified as a contributory item under the Sydney Development Control Plan 2012 (the DCP). 5. The application was advertised and 6 objections were received raising concerns with impacts on neighbours, the laneway, and the HCA. 6. The Court arranged a conciliation conference under s 34(1) 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. 7. 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. 8. 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. 9. 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 preconditions to the granting of consent have been met. 10. The site is within the R1 General Residential zone under the LEP and the proposed development is permissible with consent in that zone. 11. In the Statement of Facts and Contentions filed with the Court, the Council raised concerns that the proposed development would have an adverse impact on the heritage item, an adjoining heritage item, the streetscape and the HCA. Concern was also raised with amenity impacts and that the development did not demonstrate design excellence as required by cl 6.21 of the LEP. 12. As a result of conciliation, the application was amended. In essence the key amendments were to address the heritage concerns of the Council as well as the amenity impacts to the lane and neighbours. 13. With the agreement, the Council filed as statement of reasons for entering into the agreement advising that, as amended, the application: 1. meets the objectives of the R1 zone and the DCP requirements to ensure maintenance of residential amenity for neighbours; 2. complies with the LEP building height and floor space ratio; and 3. in the use of high quality material and with the amended design and agreed conditions of consent, addresses the relevant heritage controls and concerns, and also meets the design excellence requirements of cl 21 of the LEP. 1. I am satisfied that the pre-conditions for granting consent, having regard to the required considerations under s 4.15 of the EPA Act, have been met, including having regard to the relevant issues raised by objectors. 2. A Certificate has also been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 3. Noting that the parties agree that the modifications to the application are minor, the Court orders that: 1. The applicant is granted leave to amend the development application and rely upon the plans referred to in Condition 1 of Annexure "A". 2. The appeal is upheld. 3. Development Application D/2018/1368 for alterations and additions to the existing building and change of use to a single dwelling is approved subject to the conditions set out in Annexure "A". ………………………………… Jenny Smithson Commissioner of the Court Annexure A (59.9 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: 15 January 2020