Land and Environment Court New South Wales Medium Neutral Citation: Vista Sol Pty Ltd atf VS Unit Trust v Inner West Council [2020] NSWLEC 1262 Hearing dates: Conciliation conferences on 8 April 2020, 29 April 2020 and 13 May 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (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 $11,500 payable by 30 June 2020. (3) The appeal is upheld. (4) Development consent is granted to development application D/2018/570 for partial demolition of existing building and adaptive reuse of existing building for the construction and use as a 4 storey boarding house with basement carpark at 319-325 Trafalgar Street, Petersham is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – affordable rental housing – boarding house development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Vista Sol Pty Ltd atf VS Unit Trust (Applicant) Inner West Council (Respondent) Representation: Counsel: A Pickles SC and A Spizzo (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Landerer & Company (Applicant) Inner West Council (Respondent) File Number(s): 2019/269485 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application DA201800570 seeking consent for the construction of a 4-storey boarding house with basement carpark at 319 Trafalgar Street, Petersham (the site) otherwise known as Lot 1 in DP397194. 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 listed by consent of the parties for conciliation by telephone on 8 April 2020, in accordance with the COVID-19 Pandemic Arrangements Policy (Pandemic Policy), published on the Court's website on 23 March 2020. I presided over the conciliation conference. 3. The parties reached in-principle agreement at the conciliation conference as to scope and nature of amendments to the plans that would be acceptable to the parties. I adjourned the conciliation conference to allow the Applicant to prepare amended plans, and on 29 April 2020 and 13 May 2020. I further adjourned the conciliation conference to allow for the terms of an agreement to be finally settled by the parties. 4. On 4 June 2020, the Court was notified that the parties had agreed the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 16 June 2020. 5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons: 1. The site is located within the R4 High Density Residential zone as identified by the Marrickville Local Environmental Plan 2011 (MLEP). The provisions of the R4 zone permit boarding house development with consent that is consistent with the objectives of the zone, which are as follows • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for office premises but only as part of the conversion of existing industrial and warehouse buildings or in existing buildings designed and constructed for commercial purposes. • To provide for retail premises in existing buildings designed and constructed for commercial purposes. • To provide for well-connected neighbourhoods that support the use of public transport, walking and cycling. 1. The proposal exceeds the maximum permissible floor space ratio (FSR) as set out in cl 4.4 of the MLEP. However, for the following reasons, I am satisfied that the proposed FSR is not a barrier to the grant of consent: * Clause 4.4 of the MLEP provides for a maximum FSR of 1.3:1. A bonus of 0.5:1 is afforded by cl 29(1)(c) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item. Residential flat buildings are permitted on the land, and the site is not a heritage item. * Relatedly, cl 6.9(4) of the MLEP specifies that a residential flat building on the site would not be subject to any height or FSR limits. As a consequence, the operation of cl 29 of the SEPP ARH provides a bonus on the existing maximum FSR which is, by operation of cl 6.9 of the MLEP, not limited. 1. Pursuant to cl 30A of the SEPP ARH, I have also considered, and accept, that the design amendments incorporated into the amended plans result in a development that is compatible with the character of the local area. In arriving at this conclusion, I accept the agreement of the architect and heritage experts that the alterations and additions proposed maintain the structural integrity and significant fabric of the existing warehouse typology in accordance with Part 6.7 of the Marrickville Development Control Plan 2011. 2. On the basis of the Remediation Action Plan, prepared by ADE Consulting Group reference STC-1912-17570 dated 13 May 2020, I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out, pursuant to cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land, and as provided for in the conditions of consent at Annexure 'A'. 1. As the jurisdictional prerequisites to the grant of consent have been addressed 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 LEC Act. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. 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. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 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 $11,500 payable by 30 June 2020. 3. The appeal is upheld. 4. Development consent is granted to development application D/2018/570 for partial demolition of existing building and adaptive reuse of existing building for the construction and use as a 4 storey boarding house with basement carpark at 319-325 Trafalgar Street, Petersham is approved subject to the conditions in Annexure A. ………………………. Tim Horton Commissioner of the Court Annexure A (389495, pdf) Plans (4928204, 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: 22 June 2020