Tauszik v Council of the City of Sydney [2022] NSWLEC 1337 | Case summary

The amended plans and supporting documentation were uploaded to the NSW Planning portal on 16 June 2022 by the Applicant. 2. The Applicant filed the amended plans and documents with the Court on 16 June 2022, together with the Site Assessment Report in relation to potential contamination by Australian Geotechnical Pty Ltd dated 5 November 2022. 3. The Council renotified the amended development application from 16 May 2022 to 31 May 22. The Council received 3 further submissions, a copy of which were filed under cover of List of Objectors on 14 June 2022. The further submissions raised the following objections: filling-in of the formerly proposed lightwell, traffic, and amenity. The Council considered all the submissions, and after taking into account compliance with the planning controls, considers that the amended plans and conditions of consent in Annexure A represent a better planning outcome. 4. D/2020/20 is for the purpose of a 7-storey mixed use development as defined in the Dictionary to SLEP 2012. 5. The Site to which D/2020/20 relates is situated within the Zone B4 Mixed Use pursuant to the provision of the SLEP 2012. Development for the purpose of a 'residential flat building' and 'commercial premises' are permissible with consent in accordance with the Land Use Table relating to Zone B4 Mixed Use in SLEP 2012. 6. The objectives of the Zone B4 Mixed Use 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. 1. D/2020/20 is consistent with the objectives of the Zone B4 because (Applicant's Statement of Environmental Effects, Volume 1, tab 4 of Class 1 Application): 1. "The proposed development provides two different uses within the same development providing commercial uses and housing for those who live and work in the area. 2. "The commercial use provides employment opportunities in the area. 3. "The proposal provides bicycle parking for the housing units and visitors. Its location near bus routes and Central Railway Station encourages walking, cycling and the use of public transport. 4. "The proposal activates the ground floor area along Elizabeth Street through the provision of a commercial spaces (viz), which in turn encourages pedestrian activity." As required by cl 2.3(2) of SLEP 2012 the Court can be satisfied that the objectives of the zone will be met. 1. A request pursuant to cl 4.6 of SLEP 2012 dated 6 June 2022 by Urban Perspectives was filed on 6 June 2022: 1. The exception to the development standard is in respect of the height control development standard in cl 4.3 of SLEP 2012. Clause 4.3(2) provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The maximum height shown on the relevant map is 22m. The height exceedance of 1.05m or 4.8% variation to the control relates to the lift overrun, and the services on the roof being air conditioning plant and photovoltaic cells. No habitable GFA is within the area above the 22m building height plane, nor any structures associated with the communal open space. 2. The Court can be satisfied as to the following matters about which it is required to be satisfied pursuant to cl 4.6(4) of SLEP 2012 that the Applicant's written request has adequately addressed the following matters in cl 4.6(3) of SLEP 2012: 1. That compliance with the development standard is unreasonable or unnecessary in the circumstances of this matter, as the objectives of the standard are achieved notwithstanding the non-compliance; 2. That there are sufficient environmental planning grounds to justify the contravention of the development standard for the reasons in the submitted request; and 3. That the proposed development will be in the public interest because it is consistent with the objectives of the relevant development standard and the objectives for development in Zone B4 of SLEP 2012. 1. The parties are of the view, and the Court can be satisfied, that the proposed development in its amended form exhibits design excellence in accordance with cl 6.21C of SLEP 2012, and the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and associated ADG. On 16 June 2022 the parties filed a Compliance Table for SEPP 65 and the ADG by John Ferres, Architect, dated 31 May 2022 which contains 94 pages. I am satisfied that: 1. The amended D/2020/20 is supported by a SEPP 65 Compliance Table by John Ferres dated 30 May 2022 and a Design Verification Statement by John Ferres dated 16 June 2022 in satisfaction of cl 50(1A) of the EPA Regulation. The Design Verification Statement confirms that D/2020/20 has been designed to be consistent with the design quality principles set out in Schedule 1 of SEPP 65, and the objectives of Parts 3 and 4 of the ADG. 2. Clauses 28 and 30 of SEPP 65 have been satisfied. 1. Heritage: The Site is located within the 'Cleveland Garden Heritage Conservation Area (C62) of SLEP 2012, and is identified as a neutral building. Pursuant to cl 5.10(4) of SLEP, the parties are satisfied that the impacts on the Heritage Conservation Area are acceptable in accordance with cl 6.21C of SLEP 2012, because the Applicant has amended its plans to design the streetscape in conformity with the 'Cleveland Garden' Heritage Conservation Area, including: 1. Retaining the forward hipped roof element; 2. Partial retention of the existing terraces fronting Elizabeth Street; 3. Further setback of balconies from Elizabeth Street which are now recessed behind the front building line. Relevant heritage conditions of consent in Annexure A are (2), (3), (12), (13), (15), (17), (19), (20) and (21). 1. Acid Sulfate Soils: The Site is mapped as Class 5 Acid Sulfate Soil pursuant to cl 7.14 of SLEP. 2. Consideration has been given as to whether the Site is contaminated, as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Applicant filed a Detailed Site Investigation Report by Australian Geotechnical Pty Ltd dated 5 November 2020 on 16 June 2022. This was a Stage 2/Detailed Site Investigation Report following on from the Stage 1/Detailed Site Investigation Report prepared by JK Environments Pty Ltd dated 6 December 2019. The Stage 2: Detailed Site Investigation Report concluded: "The results of the chemical analysis indicate that the site does ot present a risk to human health based on information collected within this report. The site is suitable for the proposed construction of a multi-storey, mixed use development with a commercial suite on the ground floor. ……" Council has also imposed condition (70) in Annexure A that Council is to be "notified of any new information which comes to light during remediation, demolition or constructions works which has the potential to alter previous conclusions about the contamination". 1. A BASIX Certificate No. 1049373M_03 dated 01 June 2022 has been provided in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) and Schedule 1 of the EPA Regulation, and is further referenced in the condition of consent (39) in Appendix A.
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 ss 34(3) and 39(2) of the LEC Act and in applying s 4.15(1) of the EPA Act because: 1. The development application D/2020/20 was prepared in accordance with cl 50 of the EPA Regulation, and signed by the owner of the land in accordance with cl 49 of the EPA Regulation. 2. I note the Council, as the consent authority, consented to the amended plans and reports in accordance with cl 55(1) of the EPA Regulation. The plans were amended to provide a better planning outcome as follows: 1. Partial retention of the existing terraces fronting Elizabeth Street; 2. Removal of the basement level beneath the retained terraces; 3. Further setback the balconies from Elizabeth Street which are now recessed behind the front building line; 4. Filling of the void space adjacent to the light well on the northern side of the 507-515 Elizabeth (which complies with the desired future character of the area); 5. Deletion of unit 8 on level 6, and replacement thereof with a communal terrace. 1. I also find that the amended plans demonstrate that the development is substantially the same as that which was filed in the Class 1 Application. 2. The appeal was lodged in accordance with the extended time for filing an appeal in accordance with the Covid-19 Amendments. 3. D/2020/20 complies with the objectives of the Zone B4 Mixed Use. 4. I uphold the cl 4.6 Request pursuant to SLEP 2012 as it is well founded as a result of the following: 1. For the reasons outlined in the cl 4.6 request, I am satisfied that D/2020/20 is consistent with the relevant objectives of the development standard and that there are sufficient environmental planning grounds to support the variation proposed. 2. The height of DA/2020/20 is compatible with the height and scale of the surrounding and nearby development, and the exceedance of the height of development standard will not result in any adverse amenity impacts. 3. I accept that DA/2020/20 will be in the public interest because it is consistent with the objectives of Zone B4 despite a breach of cl 4.3 of SLEP 2012. 4. For the above reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose. 5. The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the height standard does not raise any matter of significance for State or regional environmental planning given the nature of the development, and there is no public benefit in maintaining the standard on the facts of this case. 6. In upholding the cl 4.6 appeal I have considered that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), in accordance with Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 where Preston, CJ of the Land and Environment Court of NSW, sat on the bench of the Court of Appeal and affirmed the interpretation provided by Basten JA in Al Maha Pty Ltd v Huajun Investments Pty Limited (2018) 233 LGERA 170; [2018] NSWCA 245 at par [21]-[24], and himself in Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 at par [74]-[81]. 1. D/2020/20 is compatible with the development within the 'Cleveland Gardens Heritage Conservation Area' as required by cl 6.21C of SLEP 2012. 2. Although the soils are mapped as Class 5 Acid Sulfate Soils pursuant to cl 7.14 of SLEP 2012, it is not a relevant consideration as the land is at 32 AHD, and not at or below 7 AHD which is the relevant consideration for assessment. The basement will also be above the water table. 3. The Site is fit for human health as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. 4. The BASIX Certificate as provided complies with the BASIX SEPP and Schedule 1 of the EPA Regulation. 5. D/2020/20 demonstrates design excellence in accordance with cl 6.21C of SLEP 2012. 6. The Council has considered the submissions made by the objectors, both from the first notification and the second notification. On 16 March 2022 I heard from the tenants of the 2 studio apartments on Elizabeth Street, and in their company inspected those units. I have also perused and considered all the submissions.
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.
The Court orders that: 1. The appeal is upheld. 2. The Clause 4.6 Request by Urban Perspectives filed 16 June 2022 is upheld. 3. Development Application D/2020/20 for the demolition of the existing buildings and construction of a new seven (7) storey mixed use development comprising one basement level, ground floor retail and seven residential apartments above at 503-505 Elizabeth Street Surrey Hills is determined by the grant of consent subject to the conditions set out in Annexure A. 4. The Applicant is to pay the Respondent's costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $5,000 within 28 days.

Tauszik v Council of the City of Sydney

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Judgment (6 paragraphs)

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Cases Cited (4)