Land and Environment Court New South Wales Medium Neutral Citation: Gazzard v Inner West Council [2020] NSWLEC 1244 Hearing dates: Conciliation conference on 15 May 2020 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court Orders: (1) Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 4 of Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the amount of $13,500 payable within 28 days of this agreement. (3) The applicant's written requests under clause 4.6 of the Leichhardt Local Environmental Plan 2013 seeking a variation of the development standards for floor space ratio and site cover under clauses 4.3A and 4.4 of the Leichhardt Local Environmental Plan 2013 are upheld. (4) The appeal is upheld. (5) Development consent is granted to development application D/2018/585 for demolition of existing building on site with the exception of the two storey building located on the south-eastern portion of the site; adaptive reuse of the existing two storey building located on the south-eastern portion of the site to a dwelling; construction of a two storey building to provide 3 dwellings; provide 3 carparking spaces at grade to Lilyfield Road frontage at 59 Lilyfield Road, Rozelle is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi dwelling housing development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Richard Gazzard (First Applicant) Charon Cavers (Second Applicant) Inner West Council (Respondent) Representation: Counsel: J Cole (Solicitor) (Applicants) S Turner (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2019/204282 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Inner West Council's Local Planning Panel of Development Application No D/2018/585 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 461.6 m2 parcel of land identified as Lot 1 in DP 86613 at 59 Lilyfield Road, Rozelle (the site). The DA as submitted to the Inner West Council (Council) on 05 November 2018 sought consent for demolition of existing structures, other than the 2 storey building on the corner of Lilyfield Road and Burt Street, the construction of a new three storey apartment building containing four residential units, and the adaptive re-use of the retained building for two residential units, and a total of four parking spaces. 3. The Court arranged two conciliation conferences under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over both conferences. The first conciliation conference was held on 18 February and 2 March 2020. On 18 February 2020 the conciliation conference commenced with a view of the site and adjoining properties. At the site view an oral submission was made to the Court by the owner of the adjoining property at 61 Lilyfield Road. Amended "without prejudice" plans formed the basis of discussions at the first s34 conciliation conference. By letter dated 31 March 2020 the Council notified the amended plans to potentially affected local residents, resulting in one submission from the adjoining owner. The first conciliation conference was ultimately terminated on 6 April 2020 due to the failure of the parties to reach an agreement by that date. 4. Further minor amendments to the DA plans were then made to address concerns raised by Council and the adjoining owner. The parties advised the Court on 4 May 2020 that they had reached an agreement and provided to the Court a draft copy of that agreement along with draft conditions. On 5 May 2020, the parties submitted by email the documents filed on 4 May 2020 along with two Clause 4.6 variation requests (one relating to the Site Coverage standard and one to the FSR standard) and a BASIX certificate. 5. I also presided over the second s34 conciliation conference, convened by teleconference due to COVID 19 procedures, on 15 May 2020. The draft agreement filed on 4 May 2020 and associated agreed plans formed the basis of the discussions at the second conciliation conference. Arising from the discussions on 15 May 2020 some minor amendments were made to the draft conditions of consent, and the final s34 agreement dated 20 May 2020 was filed with the Court on 1 June 2020. 6. The main changes between the plans as refused by Council's Planning Panel on 9 April 2019 and the final plans the subject of the s34 agreement are: 1. The number of dwellings has reduced from six to four, and the number of storeys reduced from three to two. 2. The architectural style is different, and the building typology has changed from single level apartments to two storey terraces, defined as multi-dwelling housing. 3. The maximum height of the development has reduced by approximately 2.69m from RL 15.929 to RL 13.24 (being the height of the roof ridge of the retained building) and RL 12.20 being the height of the parapet of the new terraces. 4. The Floor Space Ratio (FSR) has reduced from 1.01:1 to 0.92:1. 5. The site coverage has reduced, with the open space and landscaped area increased. 6. The number of parking spaces has reduced from four to three and all are accessed off Lilyfield Road, with less on-street parking spaces removed. 1. 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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraphs 8 and 9 below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Leichhardt Local Environmental Plan 2013 (LLEP 2013) are: 1. The development is for the purpose of multi dwelling housing, which is a use permissible with consent in the R1 General Residential zone. 2. I accept the advice of the parties and the evidence contained in the amended application that the development contravenes the following development standards in LLEP 2013: 1. Clause 4.3A Landscaped areas for residential accommodation in Zone R1. In this case, although the 'landscaped area' of the development at 22.4% of the site area exceeds the minimum requirement for 20% and is therefore compliant, the 'site coverage' at 65.42% of the site area exceeds the maximum requirement of 60% and is therefore non-compliant. This is addressed in the Clause 4.6 variation request by JVUrban Pty Ltd dated 9 March 2020. 2. Clause 4.4 Floor space ratio (FSR). In this case the maximum FSR is 0.7:1 and the subject development has a FSR of 0.92:1, and is therefore non-compliant. This is addressed in the Clause 4.6 variation request by JVUrban Pty Ltd dated 29 April 2020. 1. The parties agree that the written requests under clause 4.6 of LLEP 2013 seeking variations to the two standards referred to in subparagraph (2) above are acceptable and should be upheld. I also accept, for the reasons contained in the two clause 4.6 variation requests, that the variations are acceptable and development consent can be granted pursuant to clause 4.6(2) of LLEP 2013 notwithstanding the contravention of the development standards. 2. Although the site does not contain a heritage item it is located within a heritage conservation area and is therefore subject to the provisions of Clause 5.10 of LLEP 2013. A Statement of Heritage Impact by Archnex Designs dated July 2018 was submitted with the original DA and considered the effect of the then proposal on the heritage significance of the conservation area. I accept the parties advice that Clause 5.10 has been considered and they have agreed the effect on the conservation area is acceptable, noting in particular the retention and adaptive re-use of the prominent 'historic' corner building and the subservient nature of the new terraces. 3. I also accept the advice of the parties that due consideration has been given to flood planning and stormwater management as required by Clauses 6.3 and 6.4 of LLEP 2013, with suitable conditions of consent included to ensure an acceptable outcome. 1. The jurisdictional matters in relation to other relevant statutory instruments are: 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. The parties agree that Council has considered whether the land is contaminated and, having regard to the Phase I and Phase II reports submitted with the original DA, that it is satisfied that the land is not presently contaminated. In addition the consent includes suitable conditions relating to the disposal of any asbestos or lead paint found on site during demolition or construction works. 2. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a Certificate number 1095286M dated 17 April 2020 has been provided demonstrating compliance with the BASIX SEPP, and the conditions of consent require compliance with this Certificate. Disposal of proceedings in accordance with the parties' decision: 1. 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' agreement. 2. The Court orders: 1. Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 4 of Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the amount of $13,500 payable within 28 days of this agreement. 3. The applicant's written requests under clause 4.6 of the Leichhardt Local Environmental Plan 2013 seeking a variation of the development standards for floor space ratio and site cover under clauses 4.3A and 4.4 of the Leichhardt Local Environmental Plan 2013 are upheld. 4. The appeal is upheld. 5. Development consent is granted to development application D/2018/585 for demolition of existing building on site with the exception of the two storey building located on the south-eastern portion of the site; adaptive reuse of the existing two storey building located on the south-eastern portion of the site to a dwelling; construction of a two storey building to provide 3 dwellings; provide 3 carparking spaces at grade to Lilyfield Road frontage at 59 Lilyfield Road, Rozelle is approved subject to the conditions in Annexure A. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (330550, pdf) Plans (645161, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2020