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[2026] NSWLEC 1195
General information, not legal advice.
Land and Environment Court (NSW)
2026-04-17
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Argos Investments Pty Ltd v The Council of the City of Sydney [2026] NSWLEC 1195
Hearing dates: 9, 10 and 11 December 2025
Date of orders: 17 April 2026
Decision date: 17 April 2026
Jurisdiction: Class 1
Before: Espinosa C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application D/2025/114 seeking consent for alterations and additions to the existing building, including a new upper floor, and for use as a pub at 310A Botany Road, Alexandria legally described as Lot B in DP 213324 subject to the conditions of consent in Annexure A.
Catchwords: DEVELOPMENT APPEAL — alterations and additions to an existing building — use as a pub — impact on the public domain — pedestrian amenity — design excellence — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7
Smoke-free Environment Act 2000 (NSW)
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.99
Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.21, 6.14, 6.21C
Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Hosking Munro Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1040
Prodromou v The Council of the City of Sydney [2020] NSWLEC 1510
Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017
Texts Cited: Sydney Development Control Plan 2012
Category: Principal judgment
Parties: Argos Investments Pty Ltd ACN 000 926 063 (Applicant)
The Council of the City of Sydney (Respondent)
Representation: Counsel:
C Ireland (Applicant)
N Hammond (Respondent)
Solicitors:
Hatzis Cusack Lawyers (Applicant)
The Council of the City of Sydney (Respondent)
File Number(s): 2025/149934
Publication restriction: No
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application D/2025/114 (DA) seeking consent for alterations and additions to an existing building and use as a pub referred to as “Green Square Tavern” (Proposed Development) at 310A Botany Road, Alexandria legally described as Lot B in DP 213324 (the Site).
The proposed trading hours of operation are 5.00am to 12.00am Midnight, Monday to Sunday (inclusive) for indoors and for outdoors, the trading hours are restricted to 9.00am and 10.00pm Monday to Sunday. However, the conditions at Ex N provide that notwithstanding, for a trial period of 12 months, the premises may trade between 5.00am and 9.00am indoors and outdoors and 10.00pm to 12.00am midnight outdoors only.
The proposed maximum capacity is for 352 persons at any one time where each floor is not to exceed the following capacity of patrons:
Lower Ground and Ground Floors: 220 patrons.
First Floor Rooftop: 120 patrons.
Fig 1: Extracted from SOFAC*, p 5 (Ex* 1)
“11. … the critical issue remains the failure to provide the mapped 2.4-metre public domain setback, resulting in a constrained pedestrian corridor and a failure to deliver the pedestrian amenity outcomes required by DCP Sections 5.2.10 and 4.2.2 and by the Design Excellence provisions in Clause 6.21C(2)(d)(ix) and (x) of the LEP.”
Mr Cooper effectively anchors his opinions regarding the Public domain setback provisions on his view that the extent of the demolition of the existing building is such that he considers the Applicant to rely on the characterisation of the Proposed Development to be alterations and additions to an existing building in order to not comply with the SDCP public domain setback controls. I will come back to this at [71] when I look at the feasibility of Mr Cooper’s opinion that an alternate development on the site by way of demolition and new construction would be a better outcome for the Site.
In this judgment I will start with a general outline of the planning context of the Site and a summary of the status of the agreements and disagreements between the experts. I will then deal with the remaining matters in the following order:
Satisfaction of the jurisdictional prerequisite as a result of the contravention of the floor space ratio (FSR) development standard (contention 2) from [19];
Public domain setback and pedestrian amenity: Section 5.2.10 SDCP (contention 3) from [27]. I will also address the SDCP provisions for highly visible sites (Contention 4): Section 5.2.8, SDCP, Objective (a) from [31];
Design Excellence: cl 6.21C(2)(d)(ix), Sydney Local Environmental Plan 2012 (SLEP) (Contention 6) from [60];
Suitability of the Site (Contention 10) from [71]; and
Conditions of consent and the disputed cigarette smoke impact condition from [81].
The Site currently consists of a single storey commercial building with lower ground storage and garage level accessed from Bourke Street. It is located close to the intersection of O'Riordan Street, Botany Road and Bourke Road in the Green Square locality (Section 5.2 of the SDCP). The existing building is not a heritage item and is not located in a heritage conservation area. The Site is located directly north of the Green Square Town Centre and train station. It has a primary street frontage of 30m to Bourke Road and a secondary street frontage of 9m to Botany Road, and the Site boundary includes a splay at the corner and the existing building is built with a nil setback to that splay corner. This siting is relevant when considering whether the Site is a ‘highly visible site’ for the purpose of the SDCP which I come back to below at [31].
The majority of the relevant SDCP provisions are found in section 5.2 Green Square and others are found in section 3.1 Public Domain Elements, section 4.2 Non Residential development and the Locality Statement for Waterloo Park at section 2.5.11.
The Site is identified on Sheet LZN_018 of the Land Zoning Map in the SLEP as being zoned MU1 Mixed Use which has the following objectives:
• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.
• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
• To ensure land uses support the viability of nearby centres.
• To integrate suitable business, office, residential, retail and other land uses in accessible locations that maximise public transport patronage and encourage walking and cycling.
Green Square Tavern is categorised as a pub which is a type of commercial premises and is permissible with consent in the MU1 zone.
The Proposed Development complies with the maximum building height development standard of 12m pursuant to cl 4.3 of the SLEP and complies with the maximum of 3 storey control under section 4.2.1.1 of the SDCP.
The Site is not located within the relevant “Areas” map specified pursuant to cl 6.14 of the SLEP which deals with community infrastructure floor space at Green Square, being land situated outside the blue line. The Site is located just outside Area 10 which would have an FSR of 2.2:1 (cl 6.14(4)(f), SLEP) and is marked with a “T” and pink shading indicating it has an FSR of 2:1 pursuant to cl 4.4 of the SLEP. I come back to the FSR of the Proposed Development at [19].
It is accepted that sections 5.2.10(1) and (2) of the SDCP regarding setbacks do not apply to the Site: Joint Report on Town Planning prepared by James Cooper for the Respondent and James Lidis for the Applicant filed 10 November 2025 (JER Planning) at par 61. I will come back to other provisions of section 5.2.10 relating to the splay corner and the public domain setback (contention 3).
The DA was publicly notified between 18 February 2025 and 12 March 2025 to 682 properties within a 75m radius of the Site. A total of 4 objections were received. The DA was also referred to Transport for New South Wales (TfNSW) for comment under s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). A response was received on 14 March 2025.
The DA was also referred to TfNSW (as Rail Authority) for concurrence under s 2.99 of the Transport and Infrastructure SEPP. A response was received on 11 March 2025 raising no objection to the DA.
On 30 April 2025, City of Sydney’s Local Planning Panel determined to refuse the DA.
The Respondent filed a Statement of Facts and Contentions (SOFAC) on 15 May 2025 (Ex 1). Council contends that the DA is not acceptable and should be refused on a number of grounds, some of which have been resolved following the joint expert conferencing. I note that there is no contention number 5 in the SOFAC. The remaining contentions pressed by the Respondent are as follows:
The proposed development does not meet the required public domain setbacks, undermining pedestrian safety, amenity and street network permeability (Contention 3).
The proposal fails to deliver the requirements of a highly visible site. (Contention 4).
The proposal fails to exhibit design excellence as required by cl 6.21C of the SLEP (Contention 6).
The proposal in its present form is not suitable for the site and is not in the public interest (Contention 10).
The parties rely on the following Joint Expert Reports:
Joint Report on Flooding prepared by expert engineers Pablo Baretto for the Respondent and Chris Thomas for the Applicant filed 17 November 2025 (JER Flooding) (Ex E). Resolving Contention 7 of the SOFAC regarding flood planning and satisfying the provisions of cl 5.21 of the SLEP as the Site is identified as being subject to flooding. In further satisfaction of cl 5.21 of the SLEP, the Applicant relies on a letter dated 10 December 2025 prepared by Chris Thomas, Senior Principal Hydrologist of Worley Consulting (Ex O).
Joint Report on Traffic and Parking prepared by Asad Rajbhoy for the Respondent and Robert Varga for the Applicant filed 6 November 2025 (JER Traffic) (Ex D) dealing with Contention 1 Transport and Servicing as resolved and satisfying the jurisdictional prerequisite of s 2.119 of the Transport and Infrastructure SEPP 2021. Also, Contention 3 Public Domain Setback as resolved, and Contention 6 Design Excellence and Contention 10 Suitability of the Site both as resolved under Contentions 1 and 3.
Joint Report on Urban Design prepared by Luke Smith for the Respondent and James Lidis for the Applicant filed 10 November 2025 (JER Urban Design) (Ex H) dealing with Contention 4 Highly visible site and contention 6 Design Excellence and setting out their disagreements.
Joint Report on Town Planning prepared by James Cooper for the Respondent and James Lidis for the Applicant filed 10 November 2025 (JER Planning) (Ex F) and Supplementary Report filed 8 December 2025 (Supplementary Planning JER) (Ex G). The Supplementary Planning JER resolves contention 2 Floor Space Ratio whereas the JER Planning deals with Contention 3 Public Domain Setback, Contention 8 Late Night Trading, Contention 9 Inconsistency with Objects of the Act and Contention 10 Suitability of the Site setting out their disagreements. It has been agreed that late night trading hours can be subject to a trial period (Contention 8).
The FSR development standard pursuant to cl 4.4 of the SLEP is 2:1 and there is some disagreement between the expert Town Planners as to the calculation of the gross floor area (GFA) for the Proposed Development. In any event, the Applicant relies on a written request prepared by Design Collaborative Pty Ltd dated 24 November 2025 (Ex B, Tab 12) (Written Request) seeking to justify the contravention in accordance with the terms of cl 4.6 of the SLEP.
The Proposed Development seeks an FSR of 2.1:1 being an exceedance of 19.77m2 or 2.9% “if one adopts Mr Coopers interpretation of what does and does not constitute GFA” (Written Request at p 1).
The expert Town Planners agree in the Supplementary Planning JER (Ex G) that the Written Request adequately demonstrates that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds.
Notwithstanding, Mr Cooper at par 11 of the Supplementary Planning JER confirms his opinion as follows:
“While the Clause 4.6 request is supported, this does not resolve the substantive planning issues in dispute. The minor FSR exceedance is not connected to the concerns raised in Contentions 3, 4 and 6 of the SOFAC. In my view, the critical issue remains the failure to provide the mapped 2.4-metre public domain setback, resulting in a constrained pedestrian corridor and a failure to deliver the pedestrian amenity outcomes required by DCP Sections 5.2.10 and 4.2.2 and by the Design Excellence provisions in Clause 6.21C(2)(d)(ix) and (x) of the LEP. These shortcomings in built form, site layout, ground-level interface and public-domain contribution would persist even with full FSR compliance. For that reason, while the Clause 4.6 variation may be acceptable, it does not change my opinion that the development in its current form does not achieve an appropriate planning outcome.”
I will come back to the public domain setback and design excellence below.
The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.4 of the SLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP, namely that strict compliance with the FSR development standard is unreasonable and unnecessary because the objectives of the development standard are met notwithstanding non-compliance (as set out from pp 4 to 9 of the Written Request) and there are sufficient environmental planning grounds to justify the contravening of the development standard (as set out at p 10 of the Written Request).
Relevantly, the objectives of the FSR development standard in cl 4.4 of the SLEP are as follows:
4.4 Floor space ratio
…
(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,
(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,
(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,
(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. [emphasis added]
Notwithstanding supporting the cl 4.6 written request, including that the Proposed Development achieves the objectives of the FSR development standard, and even if full compliance with the FSR development were achieved, the Respondent contends that the Proposed Development does not meet the required public domain setbacks, undermining pedestrian safety, amenity and street network permeability (Contention 3). In essence, the Respondent’s case is that the Applicant has not adequately justified why elements of the facade should be retained and thereby avoid the provision of the public domain setback (SOFAC, Contention 3 (c)). The Respondent relies on particular (f) of Contention 3 which provides that the “Site and its adjacent footways are of significant strategic importance due to its proximity to the Green Square Town Centre, Green Square Station …”.
I conclude that the Respondent’s contentions are not supported by the evidence and as such do not warrant the refusal of the Proposed Development. I now set out my reasons.
The impact of retaining the façade at the existing nil setback from the boundary is particularised at Contention 3(h) as resulting:
“… in a narrower footpath at the Botany Road and Bourke Street intersection, creating an awkward and constrained interface at what will be a busy pedestrian intersection, as a result of the development of the site as a pub and adjacent site for a mix of uses. This outcome will negatively impact pedestrian movement and compromise the operation of surrounding streets that connect to the Green Square Town Centre along with the regional cycleway that extends the length of Bourke Street and Botany Road between Woolloomooloo to the north and Gardeners Road, Mascot to the south.”
“i. The proposed development fails in respect of the following public domain design excellence considerations in clause 6.21C(2) of the Sydney LEP 2012:
• Clause 6.21C(2)(b): The form and external appearance of the proposal will not improve the quality and amenity of the public domain.
• Clause 6.21C(2) (d)(ix): the development does not adequately address pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network.
• Clause 6.21C(2)(d)(x): the development does not adequately address the impact on, and any improvements to, the public domain.
ii. The proposal fails to enhance the public domain through the provision of setbacks to increase pedestrian amenity contrary to objective (c) and provision (1) of 5.2.10 of the SDCP.
iii. The proposal fails to provide a setback that is generally consistent with existing, adjacent patterns of building setbacks on the street contrary to objective (a) of section 4.2.2 Building setbacks of the SDCP 2012.
iv. The proposal fails to contribute to the new, fine-grain public street network that enhances amenity and encourages travel on foot and by bicycle contrary to objectives (a) to (j) of the Green Square Urban Strategy as outlined in section 5.2.2 of the SDCP, objectives (a) to (c) of section 3.1.1 Streets, lanes and footpaths of the SDCP, objective (b) of section 3.1.2 Pedestrian and bike network of the SDCP, provision 3.1.2.1(1) Bike Network of the SDCP.
v. The proposal fails to contribute to a well-connected, legible and safe street network that supports sustainable travel behaviour, equitable access to key destinations, and a mix of transport modes and activities consistent with the street’s intended function and hierarchy. This is contrary to objectives (a), (b), (d) and (e) as outlined in Section 5.2.4.1 Street network of the SDCP.”
The location of the Site is as set out above at [7]. The SDCP provides specific objectives and controls for “highly visible sites” at section 5.2.8 where Objective (a) is to “Enable opportunities to create landmarks, provide focal points and reinforce view corridors at the termination of vistas with buildings, structures, public art or landscape treatments” and Provision (1) is for development on highly visible sites identified in Figure 5.49 Green Square structure plan, to “provide a landmark in the form of a building or high quality landscaping …”.
The Applicant submits that the starting point for this contention is the error that the Council and its expert, Mr Luke Smith, make in identifying the Site as designated highly visible pursuant to Fig 5.49 of the SDCP. “It is clearly not, as it is on a separate block to that which is marked highly visible” (Applicant’s Written Submissions (AWS), par 39).
Fig 5.49 appears at Council’s Bundle folio 100 (Ex 2) and it is also extracted at Fig 5 of the JER Urban Design (Ex H). I reproduce an extract of Fig 5.49 of the SDCP below at Fig 2. There are some asterisks on that figure that do cross property boundaries, however the asterisk on the corner of Bourke Road and Botany Road does not impinge at all onto the Site.
Fig 2: extract from Fig 5.49 of SDCP
“Highly visible sites are located at the termination of a vista or on the corners of prominent intersections and are to accommodate landmarks such as features or objects on a building and high quality landscaping. Landmarks can be features or objects on a building that will act as points of reference.”
Mr Lidis does not agree that the Site is mapped as ‘highly visible’ pursuant to Fig 5.49 of the SDCP and that it is the adjoining site at 284 Wyndham Street that is designated as ‘highly visible’: JER Planning at par 5. Mr Lidis goes on to express his view in any event, that in the context of the neighbouring development which provides for the ‘highly visible’ build form anticipated by the controls and that the Site does not have the potential to be a ‘highly visible’ site concluding that “any development on the Site would be wholly subservient to and visually dominated by the overall height, bulk and scale of the development on the neighbouring site.”
On the other hand, Mr Luke Smith, opines that the Site “could provide a focal point through a more active frontage. There is also ample opportunity for the integration of public art on the facades and/or roof, and landscaping could be offered via an increased setback. Integration of rooftop planting, which is visible from the public domain is also feasible.”: JER Urban Design at par 4.
In contrast Mr Lidis expresses his view that the requirements for ‘highly visible sites’ do not apply to the Site. “In the context of the current controls, the existing built form, small size of the site and adjoining approved development, it is my view that there is limited opportunity to provide a landmark or focal point on the site, public art, or landscape treatment.”: JER Urban Design at par 8.
Mr Lidis conceded in cross examination that the Site was part of a larger site that was a highly visible site. He did not cavil with that. What he did say was that it was unreasonable to apply all of the provisions of a highly visible site specifically and expressly to that corner site. I agree with Mr Lidis and I adopt his reasoning. In any event, the Proposed Development is required to satisfy the provisions of the SLEP for design excellence which, together with being located on a splay corner (see below at [42]), would largely achieve the objectives for highly visible sites and Provision 2 of section 5.2.8 of the SDCP. For the purpose of the Proposed Development, the application of section 5.2.8 of the SDCP does not add anything to the requirement to achieve design excellence. I come back to design excellence below at [60].
Fig 3: Extract of Figure 17 from SOFAC
Fig 4: Extract of Figure 1 from SOFAC
The expert traffic engineers agreed that the following contentions were resolved:
Contention 1: Transport and Servicing, because:
(a) the proposed pub will generate minimal pedestrian activity: JER Traffic at par 14.
(a) “The traffic and parking experts at [par (24) of the] JER Traffic and Parking identify that due to the retention of the façade, it is not feasible to provide a shared pedestrian/cycle path with a minimum desirable width of 4m. The experts at [par (25)] agreed that a widened sealed footpath pavement was therefore to be provided between the existing building walls and existing kerb along Bourke Road frontage, except around the two trees (a liquidamber and a London plane tree) which are to be retained. At [par (26)] JER Traffic and Parking the experts explain that suitable passing areas would therefore be provided for pedestrians and cyclists” (AWS at par 20).
Mr Cooper’s opinion is that “the absence of eligibility for a floor-space incentive under Clause 6.14 does not remove the operation of the DCP’s setback control nor the specific public domain design excellence considerations in clause 6.21C(2) of the Sydney LEP 2012”: (JER Planning, par 60). Mr Cooper agrees that the Site is not subject to any recommended setback or alignment pursuant to the Building setback and alignment map Sheet 018 (Ex 2, folio 118) (Tcpt, 10 December 2025, p 98(20)).
The Site is situated on a splay corner and the existing building is built to the boundary providing a nil setback
Section 4.2.2.1(5) of the SDCP, dealing with setbacks, and section 5.2.10(6) including Figure 5.58 are two controls of the SDCP that reference no setback from the boundary where there is a splay at the corner, that is, the corner of the building is to be built to the boundary of the splay at ground level. Mr Cooper gives the control in section 5.2.10(6) of the SDCP some substantial relevance and weight (Tcpt, 10 December 2025, p 97(28)).
Mr Cooper opines in the JER Planning at par 61 that:
“it is accepted that section 5.2.10(1) and (2) of the SDCP do not apply to the subject site. However, compliance with Section 5.2.10(7) ‘Where a building is located on a corner, the acceptable street front setback is to be determined separately for each street.’ is required, a the site occupies a corner position. … In this instance, the Public Domain Setbacks Map provide the relevant guidance, identifying a 2.4m setback provided by the neighbouring site at 284 Wyndham Street on each frontage.”
The Applicant submits that the reliance by Mr Cooper on section 5.2.10(7) of the SDCP is not persuasive because that provision “simply provides that where a building is located on a corner, the acceptable street front setback is to be determined separately for each street. This has nothing to say about what dimensions a footpath shall be” (AWS, par 27).
Mr Cooper does not agree with Mr Lidis in relation to section 5.2.10(6) and section 4.2.2.1(5) of the SDCP requiring a nil setback along both street frontages simply because the site includes a splayed corner. Mr Cooper suggests that the Pre-DA advice given to the Applicant anticipated that the splay corner controls and the 2.4m public domain setback controls would need to be addressed together by “providing the required 2.4-metre setback along Bourke Street while providing a splay at the intersection”: par 64, JER Planning. Mr Cooper’s view is that section 4.2.2.1(5) of the SDCP is limited to new development on corner allotments and “does not remove the need to satisfy the broader setback objectives under section 4.2.2 and 5.2.10 of the DCP.” Mr Cooper qualifies that his opinion that the Proposed Development should be assessed against the current SDCP controls rather than relying on the existing building alignment is due to the “scale of the new built form and the increase in intensity of use”: par 65, JER Planning. This qualification is relevant because Mr Cooper’s view as to the characterisation of the Proposed Development seems to taint his opinion and application of the controls in the SDCP. I come back to this at [73].
Then at par 67 of the JER Planning, Mr Cooper opines that:
“67. Maintaining the existing footpath width is not sufficient in this context. The 2.4 metre setback is necessary to accommodate the increased pedestrian and bike activity anticipate as the Green Square precinct continues to develop. Failure to provide the setback will result in a constrained corner at the intersection of Botany Road and Bourke Road, reducing pedestrian safety and the functionality of the adjoining Bourke Street regional cycleway.
…
69. Accordingly, the remaining 30 -metre segment adjoining the subject site constitutes the final unresolved link necessary to complete the 6.1-kilometre Bourke Street Cycleway network. The delivery of this portion is critical to achieving providing a continuous, safe and accessible active-transport corridor directly linking Woolloomooloo to the north and Gardeners Road, Mascot to the south. The provision of a 2.4m setback at this location would not only resolve the existing discontinuity in the cycleway but would also substantially enhance pedestrian amenity and public domain outcomes consistent with the objectives and provisions detailed at Particular 34(i) of the SOFAC.”
Objective (c) to section 5.2.10 of the SDCP is to “[e]nhance the public domain through the provision of setbacks to increase pedestrian amenity and supplement the public open space.” No reference to or mention of amenity for cyclists is made. Mr Cooper agrees that Council only requires the additional width because the path is a designated shared path for pedestrians and cyclists and would not require additional width if it was just a pedestrian footpath (Tcpt, 10 December 2025, p 98(14)).
The Locality Statement for Waterloo Park sets out the desired future character for this part of Green Square (Ex 2, folio 74) and Mr Cooper agrees that there is no reference to the provision of additional setback or a particular level of setback to facility shared bike paths or bike paths for this specific Site (Tcpt, 10 December 2025, p 101(29)).
Mr Lidis, in cross examination, and in response to his attention being drawn to an objective of section 3.1.1 of the SDCP being to provide streets that prioritise pedestrians, cycling and transit use, maintains his evidence that:
“… you're still able to have a shared, like, pedestrian path as exists. … because I take into consideration all of the controls like any planner would. On balance, yes ‑ all those provisions are taken into consideration, but, on balance, I think that what's being proposed is reasonable and that's where I land. … We're dealing with something that's definitely not a large site. It's a small site, it's constrained. I've still taken into consideration these provisions, but at the end of the day you're still able to have your bike path and your pedestrian access, albeit it's not what the council desires.” (Tcpt, 10 December 2025, pp 102-103)
I find that Mr Cooper’s opinion quoted above from par 60 of the JER Planning is not supported by the evidence. At the time he prepared his written evidence, Mr Cooper had not considered the Traffic JER. The Traffic experts at pars 25 and 26 of the JER Traffic agree that the issue in Contention 3 regarding public domain setback is resolved because the footpath widening between the existing building walls and existing kerb will “provide suitable passing areas for pedestrians and cyclists”.
During cross examination, Mr Cooper agreed the traffic and parking experts are the relevant experts and in relation to this particular issue dealing with the ability to provide safe access along the pedestrian and cycle path, having regard to the width that can be provided, and both Mr Cooper and Mr Lidis agreed that the opinion given at par 26 of the JER Traffic would be given determinative weight in relation to the issue of safety and safe circulation (Tcpt, 10 December 2025, p 105(25)-(37)).
In the context of a safety concern raised by the Respondent of intoxicated patrons leaving the Site and colliding with cyclists, I have considered the design of the location of the doorway and the terrace area allowing for the proper integration of people leaving the pub with the shared pathway and in combination with the regulation regarding the responsible service of alcohol, I am satisfied that this safety risk is appropriately mitigated. In reaching this state of satisfaction I have also taken into consideration the Australian Road Rules which require cyclists to give way to pedestrians, a fact that was also accepted by Mr Smith in cross examination.
As the Applicant submits at par 35 of the AWS, there are other examples of bike paths within the bike network areas that are less than 4m. A total of 1.9m will be provided by the existing footpath (excluding the trees) and the areas between the trees could be used for passing bays.
Fig 5: Extract of Figure 14 of the SOFAC
As noted during the onsite inspection on the first day of the hearing, the area in front of the Sydney Water infrastructure across the road from the Site is unable to provide a path as desired by Council. That Sydney Water site area presents as a “choke point that exists on the other side of Wyndham Street” and “there’s no prospect at all for Sydney Water to agree to dedicate land and widen that bike path” (Tcpt, 10 December 2025, p 109(35)).
There is also the area where the cycleway goes onto share the road carriageway with motor vehicles rather than sharing the pedestrian footpath as seen during the site view on the first day of the hearing. The Court also has evidence of other areas at Dunning Avenue and Gardeners Road, Rosebery where Council has marked a shared path having a width of 1.54m and 1.74m respectively: see Ex J photos.
I find that it cannot be said that the provision of a further 2.4m setback over this 30m strip is critical but rather that instead, there are portions of the cycleway network, including and in addition to this strip of 30m which is less than the desired 4m shared cycle and pedestrian network and that cyclists will need to negotiate other similar narrow sections of path as well as negotiate other various obstacles.
I also find, consistent with the traffic and parking experts, that the existing cycle network objectively appears to be manageable, and I note the proposed improvements to the surface of the existing path and the treatment around the existing trees which will create, in effect, a passing bay-like function.
I therefore conclude that Contention 3 is resolved.
Development consent must not be granted to the Proposed Development unless, in the opinion of the consent authority, the Proposed Development exhibits design excellence: cl 6.21C(1), SLEP.
The Respondent helpfully provided the Court with a copy of the decision of Preston CJ regarding design excellence in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017 (“Toga Penrith”) and in particular at [70]-[74].
The Applicant also referred the Court to the fact that the Proposed Development is an alteration and addition to an existing building and that this is important in terms of design excellence: Prodromou v The Council of the City of Sydney [2020] NSWLEC 1510 at [106] and Hosking Munro Pty Ltd v The Council of the City of Sydney [2024] NSWLEC 1040 at [27].
I have considered all the evidence, including the Statement of Environmental Effects (Ex A, Tab 5) and the expert evidence, as well as the submissions of the parties.
The existing setback does not change and neither does the bulk and massing. I find that the setback is neutral as regards design excellence. The Proposed Development provides large windows to the ground floor and there is transparent glazing to both street frontages.
Mr Cooper in the JER Planning at pars 86-87:
“In my view, the form and external appearance of the proposed development proposal does not demonstrate a high standard of architectural design, materials, colours and detailing appropriate to the building type as required by Clause 6.21C(2)(a) of the Sydney LEP 2012 as detailed in Contention 4 and 6 of the SOFAC.
I defer to the Respondent’s Urban design expert addressing Contention 4: Highly visible sites, active frontages, and continuous awning and Contention 6: design excellence which focuses specifically on the form and external appearance of the proposal.”
Mr Smith argues the proposition that design excellence requires a further setback: in JER Uban Design (Ex H) at pars 31-33. I agree with the Respondent’s submission that it is unclear how this relates to architectural design, materials, colours and detailing and that it seems to be a concern repeated from Contention 3 and the public domain setback.
I find that the public domain treatment is appropriate being of the high quality green and grey-black tiles made in Spain (Ex K) which will wrap around the entirety of the building, and I note Mr Smith’s acknowledgement that the green tile treatment is reflective of a history of providing such tiled treatments to public hotels in Sydney. I also note that Mr Smith acknowledged that the treatment of the end walls with the quality green and grey‑black tile will improve their appearance, one of which is largely graffiti‑covered, and the other one viewed from Botany Road is also unattractive in appearance.
In relation to the setback, the Applicant, in closing submits as follows:
“The area that's currently dirt and stone and the occasional blade of grass between the liquidambar and the London plane tree, that could of course be dealt with ‑ sealed and dealt with in a way that would allow, for example, pedestrians or cyclists to step off the main part of the path, wait for people to go past. In effect, a passing bay‑like function could be performed by that area between the two trees. The width of the area from the wall to the edge of the kerb is 3.5 metres on the plans, and that can be measured. Although, for example, between the first tree and the wall, that's 1.9 metres. Between the roots of the tree downslope, the London plane tree and the wall of the existing development, that's 1.2 metres. Although there are those dimensions, the existence of the area between the trees and the full 3.5‑metre width in that location is significant.” (Tcpt, 10 December 2025, p 138(9) to (20))
Mr Smith accepted that treatments to pave the existing footpath completely in a way that protects the roots of the two trees are available and he accepted that the Australian road rules require cyclists to, in general on a shared path, give way to pedestrians.
In light of this, and together with the agreement of the Traffic engineers and the high quality materials and façade design, I am satisfied that the Proposed Development has addressed the matters listed at cl 6.21C(d)(ix) and (x) of the SLEP and I am satisfied that the Proposed Development exhibits design excellence.
Contention 10 of the SOFAC contends that the proposal in its present form is not suitable for the site and is not in the public interest and at particular (d) “it is contended that the proposed development does not satisfy Section 4.14(1)(c) and (e) of the [EPA] Act.”
Section 4.15(1)(c) and (e) of the EPA Act require the following:
4.15 Evaluation (cf previous s 79C)
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
…
(c) the suitability of the site for the development,
…
(e) the public interest.
“given the scale of demolition of the Bourke Street façade, essentially the whole of this wall is to be demolished, … only a very small section of wall that is being retained of the Bourke Street façade, and all internal walls are being demolished. So, council respectfully submits that the DA should be viewed as a new development, but in the alternative, even as alterations and additions, given the significant extent of demolition of the Bourke Street façade, the whole of that wall is essentially being removed, and a setback could have been provided to Bourke Street.” (Tcpt, 10 December 2025, p 149(32)-(40)).
I reject that submission for a number of reasons. Firstly, the description of the development is “alterations and additions to an existing building” and notwithstanding Council expressing some concerns about this in the letter of 26 March 2025 at folio 200 (Ex 2), improper or incorrect categorisation of development was not expressly contended by the Respondent in the SOFAC.
Secondly, the experts ultimately agreed that demolition would result in the Proposed Development, a pub, to be not feasible. The Respondent made some submissions in closing that the Site was not suitable for that particular use (Tcpt, 10 December 2025, p 151(18)-(26)) however, the court is tasked with assessing the Proposed Development, not any other alternate hypothetical development.
At par 45 of the JER Planning, it is noted by Mr Lidis that the provision of the setback would reduce the area of the Site available by a substantial margin and properly functioning development could not be provided on it.
The Applicant has provided an affidavit of Chris Thomas (Thomas affidavit) (Ex C). In that affidavit, Mr Thomas goes into detail about the minimum requirements of a pub in terms of floor space, circulation and other areas.
Mr Cooper at par 81 of the JER Planning does not accept Mr Lidis’ opinion and seems to suggest an alternate development proposal which would necessarily rely on a cl 4.6 written request to attempt to justify a non-complying height of building as an offset of loss of yield as a result of achieving the desired public domain outcome: JER Planning at pars 82-85. I note that Mr Cooper did not have regard to the Thomas affidavit and that he does not have any expertise in the minimum specifications and requirements for a pub and as such I reject Mr Cooper’s alternate proposal, which, as I have identified already, is not the Application before the Court.
The Applicant submits that as the Site is outside the cl 6.14 FSR “Areas”, it would be
“unfair to require the provision of the setback without the correspondent guarantee under the DCP provision of further FSR. … The existing 3.5m path is adequate, as explained in the Traffic and Parking JER” (AWS, par 26).
“(a) A report prepared by a suitably qualified person which provides an assessment of the cigarette smoke impacts travelling through the operable roof to the adjoining residential units and communal spaces at 284 Wyndham Street, Alexandria.
(b) Where amendments to the design are required in the report required by (a) above, the plans are to be submitted for approval by Council’s Area Planning Manager prior to the issue of a construction certificate.
Reason
To ensure that the cigarette smoke will not have unreasonable impacts to the adjoining future residential uses.”
The Applicant does not agree with the proposed condition on the basis that it is unreasonable and there is no evidence to support it. I agree with the Applicant.
Mr Cooper concedes in cross examination that he is not an expert in odours (Tcpt, 10 December 2025, p 126(35)) and that he is not aware of any other example in which that condition has been applied by the Respondent (Tcpt, 10 December 2025, p 122(12)). Mr Cooper also agrees that there will be over 10m in height difference between the void area at the location of the new operable roof and the floor area of the residential units at level 4 of the adjacent development (Tcpt, 10 December 2025, p 126(2)) and that there will be a 10m setback between the buildings.
Mr Lidis gives expert evidence that in his experience he has “never seen the maximum amount of people in a gaming room all smoking” (Tcpt, 10 December 2025, p 128(47)). Mr Lidis refers to the Smoke-free Environment Act 200**0 (NSW) “which means that you have to have a 25% open area to an area which people are able to smoke inside” leading to the design of the gaming room of the Proposed Development. Mr Lidis is of the opinion that the appropriate way to deal with cigarette smoke odour is under the regulation under that legislation. (Tcpt, 10 December 2025, p 127(34-46)).
Based on the opinions given by Mr Cooper and Mr Lidis, I prefer the evidence of Mr Lidis because his expertise extends as a liquor licensing specialist and as there is no other odour evidence, I find that the distance between the source of the cigarette smoke and the future residential neighbours to be sufficient to mitigate any odour impact. Accordingly, I conclude that there is no reasonable basis for the proposed cigarette smoke impact condition sought by the Respondent and that it will be excluded from the conditions of consent.
The Court orders:
The appeal is upheld.
Development consent is granted to Development Application D/2025/114 seeking consent for alterations and additions to the existing building, including a new upper floor, and for use as a pub at 310A Botany Road, Alexandria legally described as Lot B in DP 213324 subject to the conditions of consent in Annexure A.
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Annexure A (390 KB, pdf)
Argos Investments Pty Ltd
The Council of the City of Sydney [2026] NSWLEC 1195