Propwise Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1148

Land and Environment Court New South Wales

Medium Neutral Citation: Propwise Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1148 Hearing dates: 17 March 2020 Date of orders: 17 March 2020 Decision date: 31 March 2020 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The appeal is dismissed. (2) The Applicant agrees to pay the Respondent's costs in the amount of six thousand dollars ($6,000) within twenty-eight days of the date of these orders. Catchwords: Appeal – Development Control Orders – demolish works order – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Propwise Pty Ltd ACN 165 975 066(Applicant) The Council of the City of Sydney (Respondent) Representation: Mr Kim in the morning hearing. Mr Wagameie (Law Graduate appearing with leave) in the hearing from 2pm (Applicant)

Counsel: N Hammond (Respondent)

Solicitors: BNC Lawyers (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2019/150440 Publication restriction: No

Judgment 1. COMMISSIONER: The Applicant is appealing an Order (the Order) issued by the Respondent under Division 9.3, Schedule 5, Part 1, Order 3 of the Environmental Planning and Assessment Act 1979 (EP & A Act). The Order dated 17 April 2019 requires the demolition and removal of unauthorised building works on the mezzanine level at Lot 1 DP 597062, 1 Hiles Street, Alexandria, NSW (also known as 78-80 McEvoy Street), (the Premises). 2. The unauthorised building works on the mezzanine level at the Premises constructed without development consent consist of the following: 1. Construction of 3 closet pan, 3 washbasins on the south western side of the mezzanine level. 2. Construction of new kitchen with benchtop, cupboards and lightweight walls extending and converting the existing approved office space area at the mezzanine into 3 rooms and a toilet. 3. Construction of lightweight partition walls creating 8 new rooms within subject mezzanine level with windows and door. 4. Construction of new ceiling above the 8 rooms mentioned in item 3 and the corridor leading to those rooms. 1. The site is rectangular in shape located at a corner site and has a primary street frontage to Hiles Street to the east, McEvoy Street to the north and bunds McCauley Lane to the west of the site. 2. The site contains a 1-storey building with a mezzanine floor, with vehicle and pedestrian access to the building on McEvoy Street. 3. The Premises were previously approved to be used as a panel beating and smash repair workshop with modifications of a portion of the mezzanine level into offices under consent U91/00232. 4. The Premises is located within Zones B7 Business Park and SP2 Infrastructure under Sydney Local Environment Plan 2012 (Sydney LEP 2012). 5. Other surrounding land uses include other commercial warehouse type uses and some mixed use residential/retail uses. 6. The Applicant filed an appeal in the Land and Environment Court in relation to the Order on 14 May 2019 pursuant to s 180 of the Local Government Act 1993, and noted the appeal as Class 1 on the first page and Class 2 on the second page. The parties accepted the Court's jurisdiction pursuant to s 8.18 of the EP & A Act and s 17 (e) of the Land and Environment Court Act 1979 (LEC Act). 7. The parties took part in a s 34 Conciliation Conference on 4 November 2019. The s 34 Conciliation Conference was terminated and the proceedings set down for hearing.