Land and Environment Court New South Wales Medium Neutral Citation: E & R Property Pty Ltd v Inner West Council [2021] NSWLEC 1255 Hearing dates: Conciliation conference on 31 March 2021 Date of orders: 18 May 2021 Decision date: 18 May 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The applicant is granted leave to rely on the amended architectural plans, amended landscape plans, updated Design Verification Statement, amended Noise Impact Statement, updated BASIX certificate and Section J (energy efficiency) Report referred to in Condition 1 of the consolidated conditions of consent at Annexure A. (2) The appeal is upheld. (3) Modification Application No. M/2019/53 to modify Development Consent No. D/2017/161, granted by the Court on 2 March 2018, for a mixed-use development at 1-13 Parramatta Road, Annandale, is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – mixed use development – conciliation conference – agreement between the parties 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55— Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: E & R Property Pty Ltd v Inner West Council [2018] NSWLEC 1100 Texts Cited: Apartment Design Guide Australian Standard AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: E & R Property Pty Ltd AFT E & R Property Trust (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): 2019/358521 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No M/2019/53 to modify Development Consent No D/2017/161 (the approved development) for a mixed-use development, to modify the approved unit mix, parking arrangement, floor plans, external finishes, site elevations, height and gross floor area (GFA) allocations for retail, residential and communal spaces, and a planning agreement (the proposal) at 1-13 Parramatta Road, Annandale (the site) by Inner West Council (the Council). 2. Leave was granted by the Court on 11 February 2021 for the applicant to rely on an amended proposal. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 March 2021. I presided over the conciliation conference. 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. 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. 4. The parties' decision involves the Court exercising the consent authority's function under s 4.56 of the EPA Act to modify the consent. The site and its context 1. The site is Lot 3 Sec 40 DP 814, Lot 4 Sec 40 DP 814, Lot 50 in DP 456784 located at 1-5, 7-9 and 11-13 Parramatta Road, Annandale and known as 1-13 Parramatta Road, Annandale. 2. The site is on the northern side of Parramatta Road, to the east of Nelson Street, with access from McCarthy Lane at the rear. 3. The site has an area of 1765sqm with a frontage of 36.27m to Parramatta Road. The site has a cross fall of approximately 3.1m from the north-west corner to the south-east corner and a cross fall of approximately 3.7m west to east. 4. There is a mixed use development on the adjoining property to the west. Background and the proposal 1. The approved development is the demolition of existing structures and construction of a mixed-use development including a commercial tenancy, 41 residential units and basement parking. The development consent was granted by the Court on 28 February 2018, following a conciliation conference where the parties reached agreement (E & R Property Pty Ltd v Inner West Council [2018] NSWLEC 1100). 2. The proposal includes the following modifications to the approved development: * Setback the building envelope from the adjacent creek to provide an increased walkway adjacent to the creek; * Dedicate the land to Council via a planning agreement; * Relocate the GFA from the increased setback to the central area between the buildings; * Amend the unit layouts on all levels; * Amend the basement layout; * Change the commercial spaces layout to improve the active street frontage and integrate it with access to the walkway; and * Create a communal open space on the rooftop. 1. The proposal includes 11 one-bedroom units, 20 two-bedroom units and 11 three-bedroom units, with a total of 42 units. The proposal includes 371sqm of retail floor area. Public submissions 1. One objector gave evidence onsite, and the Court and the parties viewed the site from the rear courtyard of the adjoining site to the west. The objector is concerned that the bulk and scale of the proposal will impact on the amenity of the existing development to the west of the site, including overshadowing the rear courtyard. Expert evidence 1. The applicant relied on the expert evidence of Ben Liddell (traffic), Joe Bacha (hydraulic engineering) and Andrew Darroch (planning). The Council relied on the expert evidence of Sean Howie (traffic and hydraulic engineering) and Glen Hugo (planning). The traffic and hydraulic engineering experts prepared joint reports addressing the Council's contentions in the Statement of Facts and Contentions which have been filed with the Court. Planning framework and jurisdictional pre-conditions 1. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to s 4.56 of the EPA Act. Section 4.56 of the EPA Act is in the following terms: 4.56 Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with— (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification. 1. I am satisfied that the proposal is substantially the same development as the development for which consent was originally granted, on the basis of the evaluation and comparison of the proposal and the approved development in the Jurisdictional Statement, at Attachment 1. 2. I accept the Council's statement in the Jurisdictional Statement that the proposal has been notified in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and the Community Engagement Framework referred to by the Leichhardt Development Control Plan 2013 at Part A, Section 3, and that the submissions received have been considered in the assessment of, and amendments made to, the proposal. 3. State Environmental Planning Policy No 55—Remediation of Land applies to the site at cl 5. Under cl 7(1), a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated. I accept the Council's statement in the Jurisdictional Statement that a site assessment prepared by Benviron Group and dated November 2012 has been carried out and forms part of the application and that the land is suitable for the development. 4. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the site at cl 5 and to the proposal at cl 4(1). A Design Verification Statement as required under cl 115(3A) of the EPA Regulation for the proposal, as amended, is included in the application. I am satisfied, pursuant to cl 28(2) of SEPP 65, that the design quality of the proposal when evaluated in accordance with the design quality principles and the Apartment Design Guide, is acceptable. 5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the site at cl 5 and the proposal is a BASIX affected development. The application for the proposal, as amended, includes an updated BASIX Certificate prepared by Integreco Consulting Pty Ltd and dated 19 February 2021. 6. The site is zoned B2 Local Centre pursuant to Leichhardt Local Environmental Plan 2013 (LEP 2013) (Land Zoning Map - Sheet LZN_ 009 of LEP 2013) and the objectives of the zone in the Land Use Table of LEP 2013 are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that development is appropriately designed to minimise amenity impacts. • To allow appropriate residential uses to support the vitality of local centres. • To ensure that uses support the viability of local centres. • To provide a mixture of compatible land uses. • To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres. • To integrate suitable business, office, residential, retail and other development in accessible locations. 1. I am satisfied that the proposal is consistent with the zone objectives. 2. There is no height of buildings development standard for the site under LEP 2013. 3. The approved development has a floor space ratio (FSR) of 2.1:1. The FSR development standard for the site is 1:1 (cl 4.4 and Floor Space Ratio Map FSR_009 of LEP 2013). Clause 4.4A of LEP 2013 provides an additional 0.5:1 FSR for mixed use development that incorporates active street frontages at ground level. The proposal includes an active street frontage to Parramatta Road at ground level. The FSR is therefore 1.5:1. The proposal and the approved development have a FSR of 2.44:1. I accept the Council's statement in the Jurisdictional Statement that the building envelope of the proposal and the approved development is acceptable to the Council as a result of the agreed condition imposing a requirement for the parties to enter into a planning agreement, pursuant to div 7.1 subdiv 2 of the EPA Act. To dedicate land adjacent to the creek to the Council. 4. The site is located within a heritage conservation area (Sch 5 and Heritage Map - Sheet HER_009 of LEP 2013) known as the Annandale Heritage Conservation Area (Annandale HCA). Pursuant to cl 5.10(4) of LEP 2013, the consent authority must consider the effect of the proposal on the heritage significance of the Annandale HCA. The application includes a Heritage Impact Statement (HIS) I am satisfied, on the basis of the HIS, that the proposal will not affect the heritage significance of the Annandale HCA, because the changes to the building envelope and appearance of the approved development by the proposal are minor within the context of the Annandale HCA. 5. Development consent is required for earthworks, pursuant to cl 6.2(1) of LEP 2013. The proposal increases the volume of excavation when comparted to the approved development. I accept the Council's statement in the Jurisdictional Statement that the matters for consideration under cl 6.2(3) of LEP 2013 are addressed by conditions of consent. 6. Clause 6.3 Flood planning of LEP 2013 applies to the site at cl 6.3(1)(b). Development consent must not be granted to development on land to which cl 6.3 applies unless the consent authority is satisfied of the matters under cl 6.3(3). I accept the agreement of the hydraulic experts in their joint report that the proposal and the consolidated conditions of consent satisfactorily address the matters under cl 6.3(3) of LEP 2013 and that the approved development, as modified by the proposal, incorporates appropriate measures to minimise and manage the flood risk to life and property and is compatible with the current and future flood hazard of the land and will not significantly adversely affect flood behaviour, resulting in detrimental increases in the potential flood affectation of other development or properties. 7. Clause 6.4 of LEP 2013 applies to the site at cl 6.4(2). Development consent must not be granted to development on land to which cl 6.4 applies unless the consent authority is satisfied of the matters under cl 6.4(3). I accept the agreement of the hydraulic experts in their joint report that the proposal and the consolidated conditions of consent satisfactorily address the matters under cl 6.4(3) of LEP 2013 and that the approved development as modified by the proposal is designed to minimise the impacts of urban stormwater on the site, and on adjoining properties and receiving waters. 8. Clause 6.8 of LEP 2013 applies to the site at cl 6.8(2). The consent authority must consider the matters under cl 6.8(3) before determining an application. I accept the Council's statement in the Jurisdictional Statement that the imposition of a condition of consent requiring an acoustic report to demonstrate compliance with the indoor design sound levels in Table 3.3 of the Australian Standard AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction prior to the issue of a Construction Certificate satisfactorily fulfils the objective of the clause to minimise the impact of aircraft noise and its flight paths by requiring appropriate noise attenuation measures in noise sensitive building. Conclusion 1. I am satisfied that it is lawful and appropriate to modify the development consent. Orders 1. The orders of the Court are: 1. The applicant is granted leave to rely on the amended architectural plans, landscape plans, Design Verification Statement, amended Noise Impact Statement, updated BASIX certificate and Section J (energy efficiency) Report referred to in Condition 1 of the consolidated conditions of consent at Annexure A. 2. The appeal is upheld. 3. Modification Application No. M/2019/53 to modify Development Consent No. D/2017/161, granted by the Court on 2 March 2018, for a mixed-use development at 1-13 Parramatta Road, Annandale, is approved, subject to the consolidated conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (449278, pdf) Attachment 1 (114476, 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: 18 May 2021