Australia, March 20 -- New South Wales Land and Environment Court issued text of the following judgement Feb. 20:

1. COMMISSIONER: This is a Class 1 appeal brought by the Applicant, Sundaraj under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application D/2023/845. The development application seeks consent for alterations and additions to the existing residential terrace at 141 Brougham Street, Woolloomooloo (Lot 1 DP 1194367).

2. 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 16 October 2024. Following the conciliation conference the Applicant made amendments to their development application responsive to the Respondent's contentions.

3. A further conciliation conference was requested by the parties and was listed by the Court on 31 January 2025. I presided over the further conciliation conference. At the further conciliation conference agreement was reached between the parties. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1) The development application was made with the written consent of the owners of the subject site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2) The development application was notified by the Respondent between 22 September and 9 October 2023. No submissions were received.

3) The amended development application is accompanied by a BASIX certificate, complying with the requirements of State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 and s 27 of the EPA Regulation. Condition 2(d) of Annexure A requires the removal (on heritage grounds) of awnings prescribed in the BASIX certificate. The removal of the awnings will be the subject of a BASIX Heritage Alternative Assessment as the specific heritage requirements of the property are in conflict with the BASIX requirements.

4) Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The subject site has not been identified as being contaminated and the works do not require excavation. The parties agree, and I accept, that s 4.6 of SEPP RH is satisfied.

5) Pursuant to State Environmental Planning Policy Biodiversity and Conservation 2021 (SEPP BC) the site is within the Sydney Harbour Catchment and eventually drains into Sydney Harbour. However, the site is not located in the Foreshores Waterways Area or adjacent to a waterway. Therefore, with the exception of the control of improved water quality and quantity, the controls set out in Division 2 of SEPP BC are not applicable to the proposed development. The development application is accompanied by Stormwater Management Plans which provide for the capture and conveyance of stormwater from the site to Council's stormwater system in McElhone Street to the rear, via an existing registered easement for drainage. The parties agree, and I accept, that the provisions of SEPP BC are met.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1951b24c011411654d8ff49e)

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