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[2025] NSWLEC 1563
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-07
Thorpe AC
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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: Reid v The Council of the City of Sydney [2025] NSWLEC 1563
Hearing dates: Conciliation conference on 4 August 2025
Date of orders: 07 August 2025
Decision date: 07 August 2025
Jurisdiction: Class 1
Before: Thorpe AC
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application D/2024/1162 lodged on 17 December 2024, as amended, for alterations and additions to a terrace dwelling including internal modifications and a first floor extension at 143 Reservoir Street, Surry Hills being Lot A in DP 913688 is determined by the grant of consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021, ss 27, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, Pt 6.2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Sydney Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 5.10, 6.21C, 7.3, 7.14, Sch 5
Texts Cited: Sydney Development Control Plan 2012
Category: Principal judgment
Parties: Teresa Reid (Applicant)
The Council of the City of Sydney (Respondent)
Representation: Counsel:
A Knox (Solicitor) (Applicant)
P Canning (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
The Council of the City of Sydney (Respondent)
File Number(s): 2025/146667
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the grant of consent subject to conditions of development application D/2024/1162 (DA) by the Council of the City of Sydney (Council).
The DA, as amended, seeks consent for alterations and additions to a terrace dwelling, including construction of new upper floor rear addition, internal configuration and works to the building facade (the Development) at 143 Reservoir Street, Surry Hills, legally described as Lot A in DP 913688 (site). This appeal concerns the imposition of condition 8(a).
The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (Court Act), at which I presided. The conference was held on 4 August 2025.
Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. Under s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments (Class 1), and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.
As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, as set out below.
The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. One submission was received. The parties advise that the submission has been considered and the relevant matters addressed in the amended plans, and in condition 8 parts 2 and 3.
Pursuant to s 4.6(1), a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should it be required to do so.
The subject site has not been identified as being contaminated and has historically been used for residential purposes (see Heritage Impact Statement, Tab 7 Class 1). The parties agree and I accept that the requirements of s 4.6 are met.
Part 6.2 applies because the site is located within the Sydney Harbour Catchment. The parties agree and I am satisfied, based on the architectural plans and condition 12, that the proposed development will have a neutral effect on the quality of water entering the Catchment.
The parties agree that the matters set out in ss 6.6, 6.7, 6.8, 6.9 and 6.10 have been appropriately addressed. I have considered the mandatory matters including aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, adverse environmental impacts on any adjacent or downstream local government areas, potential release of pollutants or impacts on water quality or the natural recession of water. I am satisfied that the requirements of these provisions are met.
The site is located within Zone R1 General Residential in the Sydney Local Environmental Plan 2012 (SLEP). The parties agree and I accept that the proposed development is permissible with consent and consistent with the relevant zone objectives.
Demolition works are permissible with consent under cl 2.7.
The site is subject to a maximum building height control of 9 m and a maximum floor space ratio of 1.75:1 under cll 4.3 and 4.4. The DA complies with these standards. The parties advise that thre are no other relevant standards under SLEP.
Clause 5.10 applies because the existing building on the site is listed in Sch 5 as an item of local environmental heritage (item I1588 - Terrace house "Carlisle" including interiors). The site is within the heritage conservation area C66 'Reservoir Street and Fosterville". The DA is accompanied by a Heritage Impact Statement (Tab 7 Class 1) and Addendum Statement (Tab 8, Class 1). The parties agree and I accept that the DA proposes an appropriate balance of preservation and restoration works. The proposed works are sympathetic to and maintain the heritage significance of the item and the conservation area.
Clause 6.21C applies because the DA proposes external alterations to an existing building. Having reviewed the amended development application against the matters for consideration at cl 6.21C(2), the parties are satisfied and I accept that the development application exhibits design excellence.
The DA proposes no car spaces and therefore complies with cl 7.3 of SLEP.
Clause 7.14 applies because the site is identified as being affected by Class 5 Acid Sulfate Soils. The DA does not propose works requiring the preparation of an acid sulfate soil management plan.
The applicant is the owner of the site.
The parties advise that the DA complies with the provisions of Sydney Development Control Plan 2012.
The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable.
Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. It follows that I am in turn required 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.
| Plan | Plan Name | Date Issued | Prepared By | | DA103 (C) | Proposed Ground & Lower Ground Floor Plan | 20/5/25 | Urakawa Jenkins | | DA104 (c) | Proposed Girst Floor & Roof Plan | 20/5/25 | Urakawa Jenkins | | DA201 (C) | Elevations Front & Rear | 20/5/25 | Urakawa Jenkins | | DA202 (C) | Elevations Long | 20/5/25 | Urakawa Jenkins | | DA301 (C) | Sections | 20/5/25 | Urakawa Jenkins | | DA801 (C) | Materials Sheet | 20/5/25 | Urakawa Jenkins |
The Court orders:
The appeal is upheld.
Development Application D/2024/1162 lodged on 17 December 2024, as amended, for alterations and additions to a terrace dwelling including internal modifications and a first floor extension at 143 Reservoir Street, Surry Hills being Lot A in DP 913688 is determined by the grant of consent subject to the conditions at Annexure A.
Annexure A (224 KB, pdf)
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Reid
The Council of the City of Sydney [2025] NSWLEC 1563