16 Cope St Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1454

Catchwords: DEVELOPMENT APPLICATION – Boarding house development – agreement between the parties – conciliation conference – orders Land and Environment Court New South Wales Medium Neutral Citation: 16 Cope St Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1454 Hearing dates: Conciliation conference on 17 September 2020 Date of orders: 25 September 2020 Decision date: 25 September 2020 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [9] Catchwords: DEVELOPMENT APPLICATION – Boarding house development – agreement between the parties – conciliation conference – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy ( Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: 16 Cope St Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: P Lennon (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) File Number(s): 2018/366600 Publication restriction: No Judgment COMMISSIONER : This Class 1 appeal concerns a development application brought before the Court under s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application D /2018/452 by the Council of the City of Sydney (the Respondent), seeking consent for the demolition of all existing structures , excavation, remediation and construction for a 5 storey boarding house which has been amended and now comprises 37 boarding room s , 1 manager ’ s room and 1 basement level, containing 4 car parking spaces, 13 bicycle parking spaces and 7 motorbike parking space s (the proposed development) at 16-22 and 24 Cope Street, Redfern on Lot 1 in DP 86495 and Lot 1 in DP 904899 (the site). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 7 September 2020. I presided over the conciliation conference. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 14 September 2020. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the A pplicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ decision if the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [ 9 ]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons: The site is located within the B4 Mixed Use zone identified in the Sydney Local Environmental Plan 2012 ( S LEP ) . The proposed use is defined as boarding house development and is permissible with consent in the B4 zone. The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres. The site is marked as Class 5 land on the Acid Sulfate Soils Map at sub cl 7.14 (2) of the S LEP however I accept the conclusions of the Acid Sulfate Soils Assessment (the Assessment) prepared by Benviron Group dated August 2020 that the site is not impacted by acid sulfate soils in the vicinity of bore holes nominated in the Assessment. Subc lause 6.21 (3) of the SLEP requires the Court be satisfied the proposed development exhibits design excellence in accordance with subcl 6.21(4) . On the basis of the Respondent’s urban design advice dated 17 September 2020, I am satisfied that the proposed development exhibits design excellence. The State Environmental Planning Policy (Affordable Rental Housing) 2009 ( Affordable Housing SEPP ) , contains standards at cl 29 that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards . I am also satisfied that the provisions of cl 30 of the Affordable Housing SEPP are met and I am satisfied that the amended plans result in a development that is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP. On the basis of the following, I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land : A Detailed Site Investigation and Remedial Action Plan (the RAP) that confirm the site can be made suitable for the proposed development , along with interim site auditor advice which confirms that these documents are satisfactory. Furthermore, I note Condition 64 of Annexure B has been imposed which requires that works contemplated by the RAP be carried out prior to the release of a subdivision certificate. Finally I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation) . 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The final orders to give effect to the parties ’ agreement under s 34(3) of the Land and Environment Court Act 1979 are: The Applicant is granted l eave to rely on the following amended documents: amended architectural plans prepared by Hosking Munro Pty Ltd dated August 2020 as set out in Annexure ‘ A ’ and listed in the table below ; Drawing number Drawing name Date EX6100 Issue D Existing Site Plan 12/08/2020 EX6101 Issue D Existing Ground Floor Plan 12/08/2020 EX6102 Issue D Existing First Floor Plan 12/08/2020 DA6100 Issue H Cover + BCA Section J Compliance Report 12/08/2020 DA6101 Issue H Site Analysis Plan and BASIX Notes 12/08/2020 DA6102 Issue H Basement Floor Plan 12/08/2020 DA6103 Issue H Site + Ground Floor Plan 12/08/2020 DA6104 Issue H First Floor Plan 12/08/2020 DA6105 Issue H Second Floor Plan 12/08/2020 DA6106 Issue H Third Floor Plan 12/08/2020 DA6107 Issue I Fourth Floor Plan 12/08/2020 DA6108 Issue J Roof Plan 12/08/2020 DA6113 Issue H GFA Calculation 12/08/2020 DA6200 Issue K East Elevation 12/08/2020 DA6201 Issue K North Elevation 12/08/2020 DA6202 Issue K South Elevation 12/08/2020 DA6203 Issue K West Elevation 12/08/2020 DA6204 Issue G East Elevation Finishes Schedule 12/08/2020 DA6205 Issue G North Elevation Finishes Schedule 12/08/2020 DA6206 Issue G South Elevation Finishes Schedule 12/08/2020 DA6207 Issue G West Elevation Finishes Schedule 12/08/2020 DA6210 Issue F Cope Street Elevations 12/08/2020 DA6211 Issue F Proposed Street Elevation 12/08/2020 DA6215 Issue E Building Envelope 19/08/2020 DA6300 Issue J Section A-A 25/08/2020 DA6301 Issue J Section B-B 12/08/2020 DA6302 Issue L Section C1-C1 Section C2 25/08/2020 DA6303 Issue J Section D-D 12/08/2020 DA6304 Issue J Detailed Section 12/08/2020 DA6305 Issue D Cope Street Section 12/08/2020 DA6701 Issue I Driveway Sections 1-1; 2-2 25/08/2020 DA6702 Issue E Swept Path Vehicles Entering 12/08/2020 DA6703 Issue E Swept Path Vehiles Exiting 12/08/2020 DA6801 Issue F Typical Accessible Room Layout 12/08/2020 DA6802 Issue F Manager Room Layout + Typical Ground Floor Room Layout 12/08/2020 DA6803 Issue F Typical 1 st , 2 nd Flor Room Layouts 12/08/2020 DA6804 Issue F Typical 4 th Floor Room Layouts 12/08/2020 DA6805 Issue F Typical Pre Adaptable Room Layout 12/08/2020 DA6806 Issue F Typical Post Adaptable Room Layout 12/08/2020 DA6901 Issue E Shadow Diagram – 9am 21 st June 26/08/2020 DA6902 Issue E Shadow Diagram – 10am 21 st June 26/08/2020 DA6903 Issue E Shadow Diagram – 11am 21 st June 26/08/2020 DA6904 Issue E Shadow Diagram – 12 Noon 21 st June 26/08/2020 DA6905 Issue E Shadow Diagram – 1pm 21 st June 26/08/2020 DA6906 Issue E Shadow Diagram – 2pm 21 st June 26/08/2020 DA6907 Issue E Shadow Diagram – 3pm 21 st June 26/08/2020 DA6913 Issue E Sun Eye View Diagrams Winter 21 st June 9am – 12 Noon Proposed 26/08/2020 DA6914 Issue E Sun Eye View Diagrams Winter 21 st June 1pm – 3pm Proposed 26/08/2020 DA6915 Issue E Sun Eye View Diagrams Summer 21 st Dec 9am – 12 Noon Proposed 26/08/2020 DA6916 Issue E Sun Eye View Diagrams Summer 21 st Dec 1pm – 3pm Proposed 26/08/2020 DA6917 Issue E Sun Eye View Diagrams Equinox 21 st March 9am – 12 Noon Proposed 26/08/2020 DA6918 Issue E Sun Eye View Diagrams Equinox 21 st March 1pm – 3pm Proposed 26/08/2020 DA6919 Issue D Sun Eye View Diagrams Winter 21 st June 9am – 12 Noon Existing 26/08/2020 DA6920 Issue D Sun Eye View Diagrams Winter 21 st June 1pm – 3pm Existing 26/08/2020 DA6921 Issue D Sun Eye View Diagrams Summer 21 st Dec 9am – 12 Noon Existing 26/08/2020 DA6922 Issue D Sun Eye View Diagrams Summer 21 st Dec 1pm – 3pm Existing 26/08/2020 DA6923 Issue D Sun Eye View Diagrams Equinox 21 st March 9am – 12 Noon Existing 26/08/2020 DA6924 Issue D Sun Eye View Diagrams Equinox 21 st March 1pm – 3pm Existing 26/08/2020 amended landscape plans prepared by Site Design Studios dated August 2020 listed in the table below; Drawing number Drawing name Date L-01 Revision C Cover 28/08/2020 L-02 Revision C Ground floor landscape plan 28/08/2020 L-03 Revision C 4 th floor landscape plan 28/08/2020 L-04 Revision C Planting details 28/08/2020 L-05 Revision C Section A & B 28/08/2020 L-06 Revision C Section C & D 28/08/2020 amended BASIX certificate prepared by Gradwell Consulting dated 20 August 2020; amended Heritage Impact Statement prepared by Form Architects ( Aus ) Pty Ltd dated August 2020; amended Acoustic Report prepared by Atkins Acoustics and Associates Pty Ltd dated August 2020; amended Plan of Man a gement prepared by Planning Lab dated 14 Augu s t 2020; Traffic and car parking statement prepared by TTPP dated 31 July 2020; Acid Sulfate Soil Assessment prepared by Benviron Group dated 5 August 2020; Detailed Site Investigation prepared by Benviron Group dated 5 August 2020; Remediation Action Plan prepared by Benviron Group dated 5 August 2020; and Interim advice prepared by Rod Harwood dated 11 August 2020. The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 197 9. The appeal is upheld. Development consent is granted to development application No. D/2018/452 for demolition of existing structures, excavation, remediation and construction of a 5 stor ey boarding house, comprising 37 boarding rooms , 1 manager ’ s room , 4 visitor bicycle parking spaces at ground level and 1 basement level, containing 4 car parking spaces, 14 bicycle parking spaces and 8 motorbike parking spaces on the property known as 16-22 and 24 Cope Street, Re dfern being the land comprised in Lot 1 Deposited Plan 86495 and Lot 1 Deposited Plan 904899 , subject to the conditions of consent in Annexure ‘ B ’ . ………………….. T Horton Commissioner of the Court Annexure A (23885323, pdf) Annexure B (558961, 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: 25 September 2020