Citi 88 Pty Ltd v The Council of the City of Sydney

Judgment

1. COMMISSIONER: The applicant is appealing the deemed refusal of development application D/2018/875 by the Council of the City of Sydney for the demolition of an existing at-grade asphalt car park and removal of a driveway crossing to Harris Street, and construction of a five storey commercial building providing 5,522sqm of commercial floor space with two basement levels for car parking, storage and end of trip facilities at 86-92 Harris Street, Pyrmont.
2. The site is legally described as Lot 1 in DP 791724, with a frontage to Harris Street of 40.725m, and an eastern frontage to Pyrmont Street of 12.05m, with a site area of 2,760m². Relevantly, the site falls around 11.5m in height from Harris Street to Pyrmont Street.
3. 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 5 September 2019 and at which I presided. In accordance with the Court's usual practice, the conference commenced onsite following a number of public submissions from residents and representatives of adjoining properties.
4. Following the onsite view, the parties and experts reconvened at the Court to continue the conciliation conference, at which time the parties reached agreement as to the terms of a decision that would be acceptable to the parties. This agreement involved the Court upholding the appeal and granting development consent to the development application subject to the preparation of amended plans, and agreed conditions.
5. I granted an adjournment in order for the Applicant to prepare amended plans, and a revised written request to justify the contravention of the height of buildings development standard, and for the parties to agree the conditions of consent. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 September 2019.
6. 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' decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application. However there are jurisdictional prerequisites that must be satisfied before this function can be exercised.