Land and Environment Court New South Wales Medium Neutral Citation: LKF Investments Pty Ltd v Inner West Council [2021] NSWLEC 1101 Hearing dates: Conciliation conference on 19 February 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is granted leave to rely on the amended plans listed at Condition 1 of Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is pay the Respondent costs thrown away in respect of the amended plans in the sum of $2,500 within 28 days of the date of this order. (3) The appeal is upheld. (4) Development Application D/2020/0525 for a 17 room boarding house, comprising 11 double boarding rooms, 6 single boarding room, 1 manager's room, common room and basement carparking at 38 Henry Street, Leichhardt is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: LKF Investments Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) C Norton (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2020/44285 Publication restriction: No Judgment 1. COMMISSIONER: LKF Investments Pty Ltd (the Applicant) has appealed the deemed refusal by Inner West Council (the Respondent) of its development application (D/2019/0525) which seeks consent for demolition of existing structures and construction of a three level boarding house with additional manager's room, a basement carpark including turntable and car stackers, along with associated works (the Proposed Development) at 38 Henry Street, Leichhardt (the Subject Site). 2. The Subject Site is zoned R1 General Residential under the provisions of Leichhardt Local Environmental Plan 2013 (LLEP), and the Proposed Development are permissible within that land use zone. The development application for the Proposed Works is made with owners' consent. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 19 February 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the conciliation conference. 6. At 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 upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. 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. 8. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land , the Parties have confirmed, and I accept, that they have considered whether the Site is contaminated and the Court can be satisfied that the Subject Site is suitable for the Proposed Development which is for a residential use and the Subject Site which is the historical use of the Subject and no change of use if proposed; 2. the provisions of Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the Proposed Development, and in relation to these the Parties advise, and I accept, as follows: 1. clause 29 of SEPP ARH provides that the consent authority must not refuse consent on certain grounds if certain prescribed standards are met, and in relation to these: 1. clause 29(1)(c)(i) provides that if the Proposed Development has an FSR less than 1:1 (being the 0.5:1 FSR permitted by cl 4.4 of the LLEP plus an additional 0.5:1 afforded by of SEPP ARH), the consent authority must not refuse the development application on grounds of density or scale. The Proposed Development has an FSR less than 1:1. 2. clause 29(2)(a) concerns building height and under its provisions SEPP ARH adopts the LLEP height development standard applicable to the Subject Site, and there is no height of buildings development standard applicable to the Subject Site under LLEP; 3. clause 29(2)(b) concerns the compatibility of the landscaped area of the Proposed Development with the streetscape, and in relation to this the Respondent has confirmed that the Applicant's revised landscape plans, referred to in the conditions of consent at Annexure A to this judgment, satisfy the provisions of this clause and that, based on the agreement of the Parties expert planners, the Proposed Development (including the landscaping to the front setback) is compatible with the streetscape in which the building is located; 4. clause 29(2)(c) concerns solar access and requires that design of the Proposed Development provides a minimum 3 hours direct sunlight to the common room between 9am and 3pm at midwinter each year. The Parties have advised that the Applicant's solar access diagrams, that include views from the sun, confirm that the common room in the Proposed Development receives at least 4 hours of solar access on 21 June each year; 5. clause 29(2)(d) concerns private open space (POS) that the Proposed Development include an area of POS of at least 20m2 in area, with a minimum dimension of 3m, as well as a POS area for the manager of at least 8m2, with a minimum dimension of 2.5m, and the Parties have confirmed that this standard is satisfied; 6. clause 29(2)(e) concerns the provision of car parking, and under its provisions the Proposed Development should include a total of nine car parking spaces based on the number of proposed boarding rooms (being 0.5 spaces per boarding room), with one of the parking spaces set aside for the manager. In relation to these requirements, the Parties agree that the proposed development includes a total seven spaces (inclusive of the manager space) consisting of three at grade spaces at the western end of the basement car park, one accessible space and three spaces in a stacking device. The Parties further advise that while the SEPP ARH "must not refuse" provision for carparking is not met, the Respondent accepts that the provision of two private electric or hybrid carshare vehicles for exclusive use of residents, and which will be located in the two southern-most spaces at the western end of the carpark, the carparking needs of the development are sufficiently addressed. The Respondent also accepts that the designated manager's car space (the northernmost space at the western end of the carpark) would also function as a carwash bay and loading bay, where required. 7. clause 29(2)(f) concerns the size of accommodation within each boarding house room in the Proposed Development, and requires that an area of not less than 12m2 (excluding kitchen and bathroom) be provided for single rooms, and 16m2 (excluding kitchen and bathroom) be provided for double rooms, and the Parties agree that the Proposed Development satisfies this standard. 1. clause 30(1) of SEPP ARH sets further development standards which the consent authority must be satisfied are met before consent can be granted to the Proposed Development, and the Parties agree, and I accept, that the Proposed Development satisfies these standards and, as a minimum, includes: 1. one communal living room where there are 5 or more boarding rooms; 2. no boarding room that has a floor area greater than 25m2 (excluding kitchen and bathroom); 3. no boarding room that would be occupied by more than two lodgers, all boarding rooms are designated as either single or double, and these restrictions are given effect in the Applicant's Plan of Management referred to in condition 60B of the conditions of consent that form Annexure A to this judgment; 4. each boarding room provides adequate bathroom and kitchen facilities; 5. a designated manager's room is provided in the boarding house as the Proposed Development would have 20 or more lodgers; 6. four bicycle spaces and four motorcycle spaces as required under SEPP ARH; 1. clause 30A of SEPP ARH provides that a consent authority must not grant consent unless it has taken into consideration whether the design of the development is compatible with the character of the local area, and the Parties have confirmed, and I accept, that this matter has been considered, in particular though the advice and joint reporting of their respective expert planners in the proceedings in which those experts agreed that the Proposed Development is compatible with the character of the local area; 1. in relation to the provisions of LLEP, the Parties have confirmed, and I accept, that the Applicant's development application (as amended) satisfies all applicable provisions of LLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure "A" to this judgment. In particular, the Parties have confirmed, and I accept, that the following provisions of LLEP have been addressed by the Applicant's Proposed Development (as amended): 1. clause 2.3(2) of LLEP requires that the consent authority, or the Court on appeal, should have regard to the objectives of the R1 General Residential zoning of the Subject Site in relation to the Proposed Development. Development for the purposes of a boarding house is permissible in R1 General Residential zone and regard has been had to the objectives of the zone by the Parties in relation to the Proposed Development; 2. clause 4.1 of LLEP concerning the minimum subdivision size has been considered, and no issues arise with respect to this clause as no subdivision is sought as part of the Applicant's development application; 3. clause 4.3 of LLEP concerns the maximum height of buildings applicable land that is subject to the provisions of LLEP, and there is no height of buildings development standard applicable to the Subject Site under the LLEP. Notwithstanding this, the Parties advise that the Proposed Development meets the objectives of the clause; 4. clause 4.3A of LLEP concerns landscaped areas for residential accommodation on land zoned R1 General Residential, and a boarding house, which is defined as a type of residential accommodation, must include landscaped area that comprises at least 20% of the site area (subcl (3)(a)(ii)), and the site coverage must not exceed 60% of the site area (subcl (3)(b)). The landscaped area included within the Proposed Development is 20.2% of the site area and the site coverage of the development is 52.7%, which complies with the development standards of this clause; 5. clause 4.4 of LLEP concerns floor space ratio (FSR) applicable to the Subject Site which is 0.5:1. However, cl 13(2)(a)(i) of SEPP ARH provides that if the floor space ratio of a proposed boarding house development is 2.5:1 or less, an additional 0.5:1 can be added to the applicable FSR development standard if the percentage of the gross floor area of the development that is used for affordable housing is 50% or higher. As a consequence, the applicable FSR standard in relation to the Proposed Development is 1:1. The Proposed Development has a FSR of 0.90:1 and is compliant with the applicable standard. 6. clause 5.10 of LLEP concerns heritage and the Subject Site is not located within a heritage conservation area, nor is any approval sought in respect of a heritage item. The Subject Site is located within the vicinity of a heritage landscape item on Henry Street, being: Street trees – row of Brush Box and 1 Fiscus hillii (I656) and the row of trees is split between the two parts of Henry St on either side of the City West Link. The Proposed Development will not impact any street trees and no issue is raised in respect of impact on the heritage significance of this item. 7. clause 6.1 of LLEP concerns acid sulfate soils and the Subject Site is classified as Class 5 acid sulfate soils land. The Subject Site is not located within 500 metres of any land classified as Class 2 acid sulfate soils. The Proposal does not involve works below 5 metres Australian Height Datum and will not lower the water table below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Consequently, the Proposed Development does not require preparation of an acid sulfate soils management plan. 8. clause 6.2 of LLEP concerns earthworks, and the Proposed Development includes earthworks for the purpose of the provisions of cl 6.2(3) of LLEP, and the consent authority or the Court on appeal is required to consider the matters in that clause. The Parties advise that the provisions of clause 6.2 of LLEP are satisfactorily addressed through imposition of condition 35 within Annexure A to this judgment. 9. clause 6.3 of LLEP concerns flood planning, and under the provisions of cl 6.3(3) development consent must not be granted unless the consent authority is satisfied of the flood planning matters identified under (a) to (e) of the clause are satisfied. However, the Parties have advised that the Subject Site is not identified as a flood control lot, and so the provisions of cl 6.3 do not apply to the Proposed Development. 10. clause 6.4 concerns stormwater management and provides that consent must not be granted unless the consent authority, or the Court on appeal, is satisfied of the stormwater management matters identified under cl 6.4(a) to (c) are addressed. The Parties have confirmed that the provisions of cl 6.4 have been satisfied by Applicant's amended plans, or through the imposition of the conditions of consent that form Annexure "A" to this judgment. 1. consistent with the provisions of cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and the Environmental Planning and Assessment Regulation 2000, a BASIX Certificate (Certificate number: 1064843M_03 issued on Monday 22 February 2021) has been submitted in relation to the development application, as amended. The Certificate identifies that the development complies with applicable water, thermal comfort and energy targets 2. in relation to the provisions of Leichhardt Development Control Plan 2013 (LDCP), the Parties advise, and accept, that the Applicant's Proposed Development has satisfied the relevant controls within LDCP, or where that is not the case, the Applicant's Proposed Development is a reasonable alternative that would satisfy the objectives of those controls such that flexibility in the application of the controls is warranted. 3. the Proposed Development has been notified consistent with the provisions of LDCP, the Environmental Planning and Assessment Regulation 2000, and submissions received in response to that notification have been considered by the Parties in reaching agreement in this appeal. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further 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. 4. 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. 5. 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. 6. The Court orders that: 1. The Applicant is granted leave to rely on the amended plans listed at Condition 1 of Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is pay the Respondent costs thrown away in respect of the amended plans in the sum of $2,500 within 28 days of the date of this order. 3. The appeal is upheld. 4. Development Application D/2020/0525 for a 17 room boarding house, comprising 11 double boarding rooms, 6 single boarding room, 1 manager's room, common room and basement carparking at 38 Henry Street, Leichhardt is approved subject to the conditions at Annexure A. ………………………….. M Chilcott Commissioner of the Court Annexure A (403049, 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: 26 February 2021