Land and Environment Court New South Wales Medium Neutral Citation: Miller v Inner West Council [2020] NSWLEC 1543 Hearing dates: Conciliation conference on 29 and 30 September 2020 and 16 October 2020 Date of orders: 09 November 2020 Decision date: 09 November 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: Refer to orders below at [18] Catchwords: DEVELOPMENT APPEAL – residential – conciliation conference – desired future character – bulk and scale – landscape, site coverage and FSR development standards non-compliance – cl 4.6 written variation requests – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Category: Principal judgment Parties: Malcolm Miller (Applicant) Inner West Council (Respondent) Representation: Counsel: D Briggs (Solicitor) (Applicant) J McKelvey (Respondent) Solicitors: DG Briggs and Associates (Applicant) Inner West Council (Respondent) File Number(s): 2020/51315 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 - Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application - residential No. D/2019/355 seeking approval for the demolition of existing structures and construction of a new three storey residential dwelling, including a basement and studio, and an in-ground swimming pool and associated landscaping works (the Proposed Development) at 8 Charlotte Street, Rozelle, legally described as Lot 10 DP 1257265 (the Site). 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 29-30 September 2020 and 16 October 2020. I have presided over the conciliation conference. 3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting leave to amend the development application and rely on further amended plans, upholding the appeal and granting development consent to the development application subject to conditions. 4. 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. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP 2013) to vary development standards as follows: 1. Landscape area (cl 4.3A(3)(a)(i) LLEP 2013: Development consent must not be granted to development which this clause applies unless the development includes landscaped area that comprises at least […] where the lot size is greater than 235 square metres – 20% of the site area) 2. Site Coverage (cl 4.3A(3)(b) LLEP 2013: Development consent must not be granted to development which this clause applies unless the site coverage does not exceed 60% of the site area) 3. Floor Space Ratio (FSR) (cl 4.4(2B)(d) LLEP 2013: FSR on land shown edged yellow on the Floor Space Ratio Map is not to exceed (ii) in the case of development on a lot with an area of 150 square metres or more but less than 300 square metres – 0.8:1) 1. The parties are in agreement that the jurisdictional pre-requisites have been satisfied and they explained how the jurisdictional prerequisites have been satisfied in a written document titled "Consolidated Clause 4.6 Submission". 2. I have read the Consolidated Clause 4.6 Submission and 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. I set out my reasons for this state of satisfaction below. Clause 4.6 request to vary Landscape development standard and Site Coverage development standard 1. I agree with the parties that the objectives of landscaped area and for site coverage fall within the same set of objectives under the LLEP 2013 and consequently it is appropriate to consider the request to vary these development standards together. The Court is satisfied that the applicant's written request, seeking to justify the contravention of the Landscape area (cl 4.3A(3)(a)(i) LLEP 2013) and the Site Coverage (cl 4.3A(3)(b) LLEP 2013) development standards, has adequately addressed the matters required to be demonstrated by cll 4.6(3)(a) and (b) of LLEP 2013 and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. I am satisfied that it is unreasonable or unnecessary in the circumstances of the Proposed Development being consistent with the common objectives of the development standards. I note, from page 5 of the Consolidated Clause 4.6 Submission, and accept that the non-compliance with the development standard in respect to the landscaped area is a technical non-compliance because the depth of the fill to be introduced to the property is greater than 500m and that: "the environmental outcome in landscape terms would be diminished by the technical compliance because the quality and depth of the soil proposed by the scheme is far superior and is likely to result in a better outcome." 1. Similarly, I note and accept from page 6 of the Consolidated Clause 4.6 Submission that: "The proposal to fill the rear yard provides a better landscaped area and as a consequence, far improved environmental outcome in terms of vegetation that would not otherwise be sustainable on the subject site." 1. I find that in relation to the Landscape and Site Coverage development standards, the written request to justify the contravention is well founded and I am satisfied that the contravention is justified in accordance with the cl 4.6 of the LLEP 2013. Clause 4.6 request to vary FSR development standard 1. The Court is satisfied that the applicant's written request, seeking to justify the contravention of the Floor Space Ratio (FSR) (cl 4.4(2B)(d) LLEP 2013) development standard, has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LLEP 2013 and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 2. The Consolidated Clause 4.6 Submission addresses how the objectives of the FSR development standard are achieved at pages 9 and 10 detailing how the bulk, form and scale is compatible with the desired future character of the local area, provides a balance between landscaped area and built form and considers the impact of bulk and scale in the context of the fact that a significant portion of the additional gross floor area is contained below ground and not readily discernible from adjoining lands or indeed from within the Site. The garage does not impact on the amenity of adjoining properties and the amended presentation by the setback of the studio and the introduction of planter boxes and complementary vegetation softens the presentation to the Elizabeth Street public areas. 3. I accept and am satisfied that compliance with the FSR development standard is unreasonable and unnecessary in the circumstances as set out in the Consolidated Clause 4.6 Submission at pages 10 and 11 as it explains the impact of the fact that: "there is no specific provision in Leichhardt LEP 2013 which excludes the GFA of a garage for a dwelling house from the calculation of floor space ratio. [ . . .] the inclusion of floor area in a garage for a dwelling house in the former Leichhardt LGA as GFA is an anomaly and is a matter to be reviewed." 1. There are sufficient environmental planning grounds to justify the contravention of the FSR development standard which I accept as set out at page 11 of the Consolidated Clause 4.6 Submission as follows: "The building bulk, form and scale of the proposed dwelling will not be out of character with the diverse building types in the locality. The proposal provides a functional private open space area, contiguous with primary living areas of the proposal; The proposed landscape treatment provides an excellent outcome in environmental terms; The area of the private open space satisfies the minimum area requirement and is complemented by an appropriate landscape treatment; The amenity of the private open space is better as a consequence of the additional fill proposed and will accommodate appropriate plantings that might not have been the case with a technically/numerically compliant landscaped area; There are no discernible impacts arising from the form the proposed dwelling on neighbouring properties." 1. I find that in relation to the FSR development standard the written request to justify the contravention is well founded and I am satisfied that the contravention is justified in accordance with the cl 4.6 of the LLEP 2013. 2. Finally, in relation to cl 4.6(4)(b) and cl 4.6(5) of the LLEP 2013 I accept as set out in the Consolidated Clause 4.6 Submission at pages 7 and 13 as to assuming the concurrence of the Director-General and consideration of the following two matters that: 1. There are no matters of significance for State or regional environmental planning. 2. The proposal is considered neutral in terms of the public benefit. 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' decision. 2. The Court orders: 1. The Applicant is granted leave to amend Development Application No. 2019/355 to rely on the following amended plans: Document Prepared by: Drawing No Date Existing Floor Plan/Existing Site Plan Graterford Holdings Pty Ltd DA–8C.01 05.09.19 Site Analysis Graterford Holdings Pty Ltd DA – 8C.02 05.09.19 Proposed Site Analysis Graterford Holdings Pty Ltd DA – 8C.03.1 12.12.19 Proposed Floor Plans Ground & 1st Floors Graterford Holdings Pty Ltd DA-8C.04.3 03.10.20 Proposed Floor Plans Studio & Basements Graterford Holdings Pty Ltd DA-8C.05.3 03.10.20 Elevations Graterford Holdings Pty Ltd DA-8C.06.3 03.10.20 Sections Graterford Holdings Pty Ltd DA-8C.07.3 03.10.20 Proposed Roof Plan Graterford Holdings Pty Ltd DA-8C.08.3 03.10.20 Landscape Plan Graterford Holdings Pty Ltd DA-8C.09.3 03.10.20 Existing Shadow Diagram Graterford Holdings Pty Ltd DA-8C.10 05.09.19 Proposed Shadow Diagrams Graterford Holdings Pty Ltd DA-8C.11.1 12.12.19 Proposed Shadow Diagrams – Rear Terrace @ 10 Charlotte 22 June (9.00am to Noon) Graterford Holdings Pty Ltd DA-8C.12.1 12.12.19 Proposed Shadow Diagrams – Rear Terrace @ 10 Charlotte 22 June (1.00pm to 3.00pm) Graterford Holdings Pty Ltd DA–8C.13.1 12.12.19 Proposed Shadow Diagrams – Rear Terrace @ 10 Charlotte 22 May (9.00am to Noon) Graterford Holdings Pty Ltd DA–8C.14.1355 05.09.19 Floor Space Ratio Graterford Holdings Pty Ltd DA-8C.15.2 03.10.20 Streetscape Elizabeth Street Graterford Holdings Pty Ltd DA-8C.16.1 03.10.20 Adjoining Properties Graterford Holdings Pty Ltd DA-8C.17.1 03.10.20 1. The applicant's clause 4.6 submissions in respect to FSR, Landscaped Area and Site Coverage are well founded and upheld. 2. The appeal is upheld. Development Application No. 2019/355 for demolition of an existing cottage and erection of a new dwelling with associated works including a detached garage, studio and rooftop terrace over is granted consent subject to the conditions of consent set out in Annexure "A". 3. No order as to costs. ………………………. E Espinosa Commissioner of the Court Annexure A (208059, 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 November 2020