Land and Environment Court New South Wales Medium Neutral Citation: Samcourt Pty Ltd v Inner West Council [2020] NSWLEC 1654 Hearing dates: Conciliation on 19 November 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Class 1 Before: Clay AC Decision: Refer to orders below at [12] Catchwords: DEVELOPMENT APPPLICATION – brewery and ancillary taproom/restaurant – conciliation – agreement – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Samcourt Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Jaku Legal (Applicant) Inner West Council (Respondent) File Number(s): 2020/145324 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Respondent of Development Application DA201900038 (development application) for alterations and additions to the existing warehouse building for use as a brewery and ancillary restaurant/taproom at lots 1-5 in Strata Plan 17149 known as 2C Gladstone Street, Newtown (Site). 2. On 19 November 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the development application and to grant development consent. 4. On 7 December 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 5. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council's remaining contentions. 6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent. The parties submitted a comprehensive statement as to jurisdictional matters which is Attachment 1 hereto. I concur with the contents of that statement for the reasons expressed therein having regard to the documents which have been provided to the Court. 8. In particular, I note: 1. The proposed development is permissible in its zone – B7 Business Park – pursuant to Marrickville Local Environmental Plan 2011 (MLEP 2011); 2. The proposed development does not exceed the height control in cl 4.3 of MLEP 2011; 3. The proposed development does not exceed the floor space ratio control in cl 4.4 of MLEP 2011; 4. The provisions of cl 6.2 of MLEP 2011 (Earthworks) are addressed; 5. The provisions of cl 6.3 of MLEP 2011 (Flood Planning) are addressed; 6. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) has been addressed by the provision of a Preliminary Site Investigation and a Remediation Action Plan and a condition requiring the development to be carried out in accordance with the Remediation Action Plan 1. Having considered the material provided to the Court, and for the reasons expressed by the parties, 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 Court Act. 2. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 3. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 4. The Court orders: 1. The Applicant is granted leave to amend its development application to rely upon the following plans: 1. Architectural Plans prepared by Giles Tribe Architects: 1. Drawing No. A000, Revision M, Cover Sheet dated 3 December 2020; 2. Drawing No. A100, Revision L, Site Plan dated 3 December 2020; 3. Drawing No. A105, Revision G, Existing Plan dated 31 July 2020; 4. Drawing No. A110, Revision G, Demolition Plan dated 31 July 2020; 5. Drawing No. A199, Revision L, Basement Plan dated 3 November 2020; 6. Drawing No. A200, Revision Q, Ground Level Plan dated 24 November 2020; 7. Drawing No. A201, Revision O, Mezzanine Level Plan dated 3 December 2020; 8. Drawing No. A300, Revision N, Elevations dated 24 November 2020; 9. Drawing No. A301, Revision J, Sections dated 31 July 2020; 10. Drawing No. A400, Revision I, Precedent Reference Images dated 31 July 2020; 11. Drawing No. A700, Revision H, Overshadowing Diagrams (Existing – June 21) dated 31 July 2020; 12. Drawing No. A701, Revision I, Overshadowing Diagrams (Existing – June 21) dated 31 July 2020; 13. Drawing No. A702, Revision C, Overshadowing Diagrams (Proposed – June 21) dated 3 December 2020; 14. Drawing No. A703, Revision C, Overshadowing Diagrams (Proposed – June 21) dated 3 December 2020; 15. Drawing No. A709, Revision F, Sun Diagrams (Existing – June 21) dated 31 July 2020; 16. Drawing No. A710, Revision G, Sun Diagrams (Existing – June 21) dated 31 July 2020; 17. Drawing No. A711, Revision A, Sun Diagrams (Existing – June 21) dated 31 July 2020; 18. Drawing No. A712, Revision C, Sun Diagrams (Proposed – June 21) dated 3 December 2020; 19. Drawing No. A713, Revision C, Sun Diagrams (Proposed – June 21) dated 3 December 2020; and 20. Drawing No. A714, Revision C, Sun Diagrams (Proposed – June 21) dated 3 December 2020; 1. Landscape Plan, Drawing No. 100, Issue D, prepared by Site Image Landscape Architects dated 3 December 2020; and 2. Swept Path Analysis, Drawing No. SK.01, Revision B, prepared by Traffix dated 26 November 2020. 1. The Applicant is granted leave to amend its development application to rely upon the following documents: 1. Plan of Management prepared by Mersonn Pty Ltd dated November 2020; 2. Acoustic Assessment prepared by Pulse Acoustic Consultancy dated 30 September 2020; and 3. Certificate of Design Intent (mechanical services) and Accompanying Plans prepared by Erbas dated 21 September 2020 and 11 September 2020, respectively. 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $4,900, to be paid within 28 days of these orders. 2. The appeal is upheld. 3. Development Application No. DA201900038, for alterations and additions to the existing strata warehouse building for use as a brewery and ancillary restaurant/taproom at 2C Gladstone Street, Newtown (Lots 1 – 5 in Strata Plan 17149), is approved subject to the conditions of consent in Annexure A. ………………………… P Clay Acting Commissioner of the Court Attachment 1 (152734, pdf) Annexure A (317986, pdf) Plans (18179126, 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: 17 December 2020