Land and Environment Court New South Wales Medium Neutral Citation: M&C Property Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1131 Hearing dates: Conciliation conference on 13 March 2020 Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application D/2018/503 and to rely upon the amended plans and documents listed in Condition 1 of Annexure A hereto. (2) The clause 4.6 written variation request prepared by Ian Glendinning Planning Pty Ltd and dated 6 December 2019 is upheld and the provision of nil motorcycle parking is found to be satisfactory. (3) The clause 4.6 written variation request prepared by Ian Glendinning Planning Pty Ltd and dated 6 March 2020 is upheld and the height of 22.625m is found to be satisfactory. (4) The appeal is upheld. (5) The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. (6) Development Consent for Development Application DA2018/503 seeking consent for the partial demolition of existing terraces and construction of a seven storey mixed use building with two commercial tenancies and a 16 room boarding house (including manager) with a communal roof terrace at 93-95 Crown St, Darlinghurst NSW 2010 is granted subject to the conditions of consent annexed hereto and marked A. Catchwords: DEVELOPMENT APPLICATION – boarding house – heritage – height and motorcycle standard noncompliance – clause 4.6 request for variation – 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: M&C Property Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: C Sorenson (Solicitor) (Applicant) A Simpson (Solicitor) (Respondent) Solicitors: Hall and Wilcox (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2019/103641 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) D/2018/503 by the Council of the City of Sydney (hereafter the Council) for the partial demolition of existing structures, and construction of a seven storey mixed use building, including two commercial tenancies and a boarding house on Lots 101 and 102 DP 601623, also known as 93 and 95 Crown Street, Darlinghurst (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 March 2020. I presided over the conciliation conference. There were no objectors whom spoke at the conciliation. It is however acknowledged that nine objectors provided written submission during the notification period, and that their issues were considered by the parties in the making of this agreement. 4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA, and also seeks a variation in height and motorcycle standards by cl 4.6 written requests, that are to be relied upon. 5. Based on these amended plans and the two cl 4.6 written requests, seeking a variation in the height and motorcycle standards, 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 issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA D/2018/503 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/2018/503 with conditions, as 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 (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); 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. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans and the conditions of consent. The parties agree that the requirements of the SEPP ARH are satisfied, including the provision of a communal room in resolution of this contention. The parties accept that there is a non-compliance in the motorcycle parking standard, as specified in cl 30(1)(H), which is addressed by a cl 4.6 written request for variation of the standard, as discussed below. 9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate that is relevant to the proposed development is provided and also identified in the conditions of consent in compliance with the SEPP BASIX. 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 site is located within the B4 Mixed Use Zone. The proposed development is permissible in the zone, consistent with the character of the local area, does not adversely impact amenity and provides sufficient (bicycle) parking for a 16 room boarding house. 11. The site is identified as being within a heritage conservation area (East Sydney), and therefore the requirements of cl 5.10 of the SLEP are relevant for consideration in granting consent to the DA. The parties are satisfied that these requirements are achieved and that there is no unacceptable impact to contributory buildings on the site or within the heritage conservation area. 12. In addition, the proposed development is required to satisfy the requirements for design excellence, as specified in cl 6.21(1) of the SLEP. The parties agree that the amended plans show high quality materials and a design that satisfies this requirement. 13. The parties agree, that based on the amended plans, the contention that relates to an exceedance of floor space ratio, pursuant to cl 4.4 of the SLEP, is now satisfactorily resolved. 14. The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) of the SLEP and cl 30(1)(H) (motorcycle parking) of the SEPP ARH. All other relevant development standards are satisfied. 15. The parties explained that the height of the proposed development, is at a maximum of 22.63m, which exceeds by 0.625m the height standard (of 22m), as specified in cl 4.3 of the SLEP. This exceedance in height is centrally located and occurs due to projection of the lift overrun/stairwell to allow access to all levels of the proposed development. 16. In addition, the proposed development does not provide any motorcycle parking due to the absence of driveway access, contrary to the requirements in cl 30(1)(H) of the SEPP ARH, which seeks one space per five rooms, therefore a total of 3 spaces is required. 17. Therefore, it is accepted that cl 4.6 written requests for variation of the height and motorcycle standards is required for further consideration to grant consent to the proposed development, pursuant to cl 4.6 of the SLEP, and that the Court must be satisfied as a jurisdictional requirement. 18. As explained in the cl 4.6 written request, the proposed non-compliant height does not result in a development that is out of character with the local area and is not perceived from the streetscape, as it is constrained to a small lift overrun that is setback in the centre of the building. 19. It explains further that the proposed development responds to the existing terraces (to be retained) and transitions well with adjoining approved developments in elevation and scale. The proposed development is compatible with other buildings in the local area. The proposed height non-compliance is not inconsistent with the (B4) zone or height standard objectives. 20. As explained in the cl 4.6 request, there are no adverse heritage or amenity impacts as a result of the non-compliance with the (height) development standard for the proposed development. The non-compliance in height is not unreasonable and is necessary, as a compliant building on the site would result in reducing accessibility to all levels by the removal of the lift to the upper floors. The proposed non-compliance of height does not result in any amenity impacts or access to services, and results in a building that better serves the need of all the residents. There are sufficient environmental planning grounds to contravene the height standard, as proposed in this development. Therefore, the proposed variation in the standard is in the public interest. 21. The parties therefore agree that a variation of the height development standard, pursuant to cl 4.3 of the SLEP, is satisfied by the cl 4.6 written request. 22. Further to this, the cl 4.6 written request addressing the non-compliant motorcycle parking explains that the proposed building does not result in a development that is unable to service the needs of residents. The cl 4.6 explains that the access to the site is limited for vehicular traffic, due to the absence of a driveway. The site is located in an accessible location and has ready access to bicycle paths, is the most likely mode of transport for residents. 23. The cl 4.6 finds that the proposed lack of motorcycle parking is not inconsistent with the zone objectives, as the proposed development provides ample bicycle parking and is easily accessible to public transport. There are no specific objectives for this standard (for motorcycles) in the SEPP ARH, although the variation request notes that there is sufficient bicycle parking in lieu of motorcycle parking. 24. The cl 4.6 request indicates that the non-compliance with motorcycle parking does not determinately impact adjoining properties or the public domain, and together with sufficient bicycle parking, compliance with the motorcycle standard is both unreasonable and unnecessary. The provision of motorcycle parking would be inconsistent with the aims of the SEPP ARH and would not provide a better planning outcome, as it would require a driveway and parking area that would impact the presentation of the building in the streetscape. 25. The request for a variation of this standard explains that there are sufficient environmental planning grounds to justify the variation in consideration of the design of the building in a heritage conservation area, ready access to public transport and potential to impact the design excellence to achieve driveway access for motorcycles. The proposed development is assessed to be compatible with the development setting and satisfies the heritage requitements for the area. The variation in the motorcycle variation is therefore in the public interest. 26. Having reviewed to the amended cl 4.6 written requests, I concur that the cl 4.6 written variation requests for the SLEP (cl 4.4) height and SEPP ARH (cl 30(1)(H)) motorcycle standards addresses the requirements of cl 4.6 by describing sufficient environmental planning grounds to justify the development standards non-compliance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site within the contextual setting. The proposed development satisfies the objectives of the zone and relevant standard, and is in the public interest. The proposed development achieves the other relevant development standards. 27. I am satisfied that the requirements of cl 4.6 of the SLEP have been addressed and that a variation in the height standard, as provided in cl 4.3 of the SLEP, and the motorcycle standard in cl 30(1)(H) of the SEPP ARH, is appropriate. 28. Based on the amended plans, cl 4.6 written requests and supporting documents to the DA, the contentions that relate to the controls as specified in the SDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would result in the refusal of the DA. 29. The parties agree that the requirements of the SDCP are complied with, based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the SDCP. During the initial notification period, nine submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement. 30. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions. 31. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties. 32. Based on the evidence and information before me, I am satisfied that there are no jurisdictional impediments to this agreement and that DA D/2018/503 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 33. 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. 34. The Court orders: 1. The Applicant is granted leave to amend Development Application D/2018/503 and to rely upon the amended plans and documents listed in Condition 1 of Annexure A hereto. 2. The clause 4.6 written variation request prepared by Ian Glendinning Planning Pty Ltd and dated 6 December 2019 is upheld and the provision of nil motorcycle parking is found to be satisfactory. 3. The clause 4.6 written variation request prepared by Ian Glendinning Planning Pty Ltd and dated 6 March 2020 is upheld and the height of 22.625m is found to be satisfactory. 4. The appeal is upheld. 5. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 6. Development Consent for Development Application DA2018/503 seeking consent for the partial demolition of existing terraces and construction of a seven storey mixed use building with two commercial tenancies and a 16 room boarding house (including manager) with a communal roof terrace at 93-95 Crown St, Darlinghurst NSW 2010 is granted subject to the conditions of consent annexed hereto and marked A. ………………………… Sarah Bish Commissioner of the Court Annexure A (173 KB) ********** 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: 20 March 2020