Land and Environment Court New South Wales Medium Neutral Citation: Designinc Pty Ltd v City of Sydney Council [2020] NSWLEC 1102 Hearing dates: Conciliation conference on 21 February 2020 Date of orders: 06 March 2020 Decision date: 06 March 2020 Jurisdiction: Class 1 Before: Bish C Decision: Refer to paragraph [17] Catchwords: DEVELOPMENT APPLICATION – boarding house – 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 (Affordable Rental Housing) 2009 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: Designinc Pty Ltd (Applicant) City of Sydney Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) City of Sydney Council (Respondent) File Number(s): 2018/369545 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) D/2018/726 by the City of Sydney Council (hereafter the Council) for alterations and additions to an existing three storey commercial building, to convert to a five storey boarding house with 22 rooms on Lot E DP 439036, also known as 26 Sparkes Street, Camperdown (hereafter the site). 2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to the parties request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held before me as duty commissioner on 21 February 2019 in Court. The Court had previously arranged a conciliation conference between the parties before a different Commissioner at the site on 12 August 2019 that was subsequently terminated, and at which the resident objectors were heard. 4. At the conciliation conference before me, the applicant sought to amend the plans to the DA to be relied upon in the agreement, with no objection from the respondent. 5. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council and issues raised by the objectors in previous notification/s of the DA have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA D/2018/726 with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA D/2018/726, with conditions described in Annexure 'A'. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); and Sydney Local Environmental Plan 2012 (SLEP). In addition, the Sydney Development Control Plan 2012 (SDCP) is of consideration to grant consent to the DA. 8. The proposed development is required to comply with the provisions of the SEPP BASIX. A relevant BASIX Certificate for the proposed development is identified in the conditions of consent in compliance with the SEPP BASIX. 9. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans and conditions of consent. The proposed development provides sufficient room size, solar access, communal space and parking for the 22 room boarding house. The parties agree that the requirements of the SEPP ARH are satisfied. 10. The parties agree that the relevant provisions of the SLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The proposed development is located within the B4 Mixed Use Zone. The proposed development is permissible in the zone and the objectives of the zone, as specified in cl 2.3 of the SLEP, are satisfied. 11. The proposed development does not exceed any numeric requirements for development standards of the SLEP, and satisfies the objectives for the relative clauses, particularly cll 7.15 and 6.21 as contended by Council. The proposed development has considered and has had regard to the existing development on the site and surrounding development, particularly as it relates to flooding and design excellence. The flood impact assessment has been considered in the siting and design of structures, as shown in amended plans of the DA, and sufficient flood mitigation is proposed to mitigate potential impact from flood events, thereby satisfying cl 7.15 of the SLEP. Ensuring design excellence is addressed by the amended plans and conditions of consent. 12. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the issues raised by objectors that relate to the controls as specified in the SDCP are resolved to the satisfaction of the parties. In particular, the issues of overshadowing, privacy and noise are addressed to the parties' satisfaction in the amended plans. These issues, as raised by residents, are satisfied through the orientation and treatment of windows, together with the design and location of the communal open space, as shown on the amended plans relied upon for this agreement. 13. The parties agree that the proposed development was publicly notified in accordance with the SDCP. During the initial and subsequent notification periods for this DA under appeal, a number of submissions in objection were received by Council. These submissions were considered by the parties, prior to reaching the agreement and are resolved to the parties' satisfaction. 14. The amended plans that relate to the proposed development have been considered in the context of the site. Based on the amended plans and supporting documents to the amended DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties. 15. I am satisfied that there are no jurisdictional impediments to this agreement and that DA D/2018/726 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 16. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 17. The Court orders: 1. The applicant is granted leave to amend Development Application No.D/2018/726 and to rely upon the following amended plans and documents: Plan Reference Prepared by Date Architectural Title Sheet, drawing number DA-A000, revision P4 DesignInc 6 February 2020 Locality Plan, drawing number DA-A001, revision P3 DesignInc 5 December 2019 Site Analysis, drawing Number DA-A002, revision P2 DesignInc 5 December 2019 Existing Refurbished Ground Floor, drawing number DA-A100, revision P13 DesignInc 28 January 2020 Existing Refurbished Level 01, drawing number DA-A101, revision P10 DesignInc 28 January 2020 Existing Refurbished Level 02, drawing number DA-A102, revision P9 DesignInc 28 January 2020 New Additional Level 3, drawing number DA-A103, revision P9 DesignInc 28 January 2020 New Additional Level 4, drawing number DA-A104, revision P9 DesignInc 28 January 2020 New Roof, drawing number DA-A105, revision P8 DesignInc 28 January 2020 North Elevation, drawing number DA-A200, revision P10 DesignInc 28 January 2020 East Elevation, drawing number DA-A201, revision P11 DesignInc 28 January 2020 South-East Corner Elevation, drawing number DA-A202, revision P7 DesignInc 28 January 2020 South Elevation, drawing number DA-A203, revision P12 DesignInc 28 January 2020 West Elevation, drawing number DA-A204, revision P8 DesignInc 28 January 2020 Section 1, drawing number DA-A300, revision P6 DesignInc 28 January 2020 Section 2, drawing number DA-A301, revision P8 DesignInc 28 January 2020 Section 3, drawing number DA- A302, revision P8 DesignInc 28 January 2020 GFA Calculation, drawing number DA-A420, revision P5 DesignInc 5 December 2019 Demolition Extend, drawing number DA-A500, revision P3 DesignInc 5 December 2019 Shadow Analysis- Hourly Existing- Proposed 9,10,11 AM, drawing number DA-A600, revision P4 DesignInc 5 December 2019 66-70 Parramatta Road Shadow Analysis, drawing number DA-A603, revision P5 DesignInc 5 December 2019 Shadow Analysis- Unit 1, 2 & 2A- 15 Minutes Interval- Sheet 1, drawing number DA-A610, revision P3 DesignInc 5 December 2019 Shadow Analysis- Unit 1, 2 & 2A- 15 Minutes Interval- Sheet 2, drawing number DA-A611, revision P3 DesignInc 5 December 2019 Shadow Analysis Communal, drawing number DA-A650, revision P3 DesiginInc 5 December 2019 Material Board, drawing number DA-A800, revision P5 DesignInc 5 December 2019 Details, drawing number DA-A801, revision P4 DesignInc 5 December 2019 Detail Elevation Brick Ground Floor, drawing number SK001, revision 2 DesignInc 29 January 2020 Detail Booster Doors & Solid Wall With Projecting Bricks, drawing number SK002, revision 2 DesignInc 29 January 2020 Landscaped Areas, drawing number DA-L100, revision P3 DesignInc 11 September 2019 Other "New Generation Boarding House": Plan of Management James Lovell & Associates 5 December 2019 Solar Access and Overshadowing Analysis Walsh Analysis 28 November 2019 Access Statement Morris Goding Access Consulting 28 November 2019 BCA Compliance Capability Report VIC Lilli & Partners Consulting 17 December 2019 Fire Safety Report Innova Services 18 December 2019 BASIX Certifcate Number 939570M_03 Gradwell Consulting 31 January 2020 1. The appeal is upheld. 2. Development Application No. D/2018/726 (as amended) for alterations and additions to the existing commercial building for the purpose of creating a boarding house of 21 rooms, including the substantial retention of the existing base building structure and the addition of two full levels above the existing (3 level) building, on Lot E in Deposited Plan 439036, otherwise known as 26 Sparkes Street, Camperdown, be approved, subject to the conditions included at Annexure 'A'. ………………………… Sarah Bish Commissioner of the Court Annexure A (145 KB) Plans (13.6 MB) ********** 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: 09 March 2020