Land and Environment Court New South Wales Medium Neutral Citation: Shellshear v Inner West Council [2021] NSWLEC 1378 Hearing dates: Conciliation conference held on 24 June 2021 Date of orders: 29 June 2021 Decision date: 29 June 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) Appeal upheld. (2) Development Application DA 201900431 for alterations and additions to the existing building and change of use to a food and drinks premises with office at 182-184 Australia Street, Newtown is approved subject to the conditions at annexure "A". Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing building shop – use as a food and drinks premises – permissibility – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Marrickville Local Environmental Plan 2011, cll 2.3, 5.10, 6.10 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Walter Shellshear (Applicant) Inner West Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2021/102241 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 201900431 by Inner West Council (hereafter the Council) which seeks alterations and additions to an existing building for use as a food and drink premises, with an office on Lot 10, DP 1120684 also known as 182-184 Australia Street, Newtown (hereafter the site). 2. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to the parties' request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 24 June 2021, without an onsite view and via Microsoft Teams. One resident objector was heard at this conciliation. 4. Based on the amended plans, to which the Court (Registrar) had previously granted leave to rely on, together with the DA's supporting documents and agreed conditions of consent (Annexure A), the parties reached agreement as to the terms of a decision that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 201900431 with conditions. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its powers under s 4.16 of the EPA Act and being satisfied, pursuant to the matters established in s 4.15(1), to grant consent to DA 201900431, with conditions as described in Annexure A. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); Marrickville Local Environmental Plan 2011 (MLEP); and the Marrickville Development Control Plan 2011 (MDCP). 7. The parties agree that the proposed development complies with the relevant provisions of the SEPP 55. The Council considers that based on the continued use of the building as retail, with long since industrial activity, no proposed excavation and sealed (food) service facility design, the site is deemed suitable for the proposed development. Together with amended plans and the conditions of consent, the parties are satisfied that the requirements of cl 7 of the SEPP 55 are addressed. The Court concurs, having sighted the Council's assessment reports, heritage reports, amended plans and agreed conditions of consent. 8. The provisions of the MLEP apply to the proposed development on this site. The site is zoned R2 Low Density Residential, pursuant to cll 2.3. The parties agree that the building on the site has historically been used as a shop, consistent with the definition in the MLEP and pursuant to cl 6.10, as evidenced by the existing shop front design and historical records, and the heritage reports supporting the DA under appeal. The DA is also supported by a Statement of Environmental Effects (SEE) and the Council's assessment report, which considers the suitability of the proposed development on the site is in context of the surrounding area. Therefore, the proposed use as a food and drink premises on the site is permissible in the R2 zone, pursuant to cl 2.3 and complies with the requirements of cl 6.10. 9. The proposed development is located within the North Kingston Heritage Conservation Area (HCA) (item C11 Schedule 5 in the MLEP). Pursuant to cl 5.10(4) of the MLEP, the Court must assess the effect of the proposed development on the heritage significance of the HCA. The parties consider and Court concurs that the requirements of cl 5.10 are satisfied, after review of the Heritage Impact Statement in the SEE. 10. The parties agree that the relevant provisions of the MLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. 11. The parties acknowledge that the newly drafted Consolidated Inner West Local Environmental Plan (identified as the Inner West LEP 2020) (hereafter the 'Draft LEP') is in the finalisation stage and should therefore be given appropriate weight, pursuant to s 4.15(1)(a)(ii) of the EPA, as it is both certain and imminent. The parties agree that the Draft LEP includes a savings provision for an existing application and also includes provision that ensures the proposed development is permissible in the zone, due to its historical use. The consent of the DA considered under the MLEP does not therefore contradict the provisions of the Draft LEP. 12. The parties agree that the DA was publicly notified, in accordance with the MDCP. During the notification period for this DA under appeal, six submissions in objection were received by Council. The respondent advises the Court that the issues raised by objectors have been considered in the agreement made by the parties. The Court heard oral submission from one objector during the conciliation, and the respondent agrees that the issues raised by this resident have been considered in making the agreement. 13. The parties advise the Court that the amended plans and heritage documents that support the DA have been considered in the context of the proposed development on the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contention raised by Council, issues raised by objectors and all merit/jurisdictional requirements are addressed to the satisfaction of the parties. 14. The respondent has advised the Court that they have undertaken the appropriate merit assessment of the DA, and which they are now satisfied the relevant provisions of the MLEP and MDCP are addressed. The relevant provisions are described in the SEE that supports the DA, other supporting documents to the DA and as considered in Council's assessment report. 15. Based on the evidence before me, I am satisfied that there are no jurisdictional impediments to this agreement and that consent to DA 201900431 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 16. 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. 17. The Court orders: 1. Appeal upheld. 2. Development Application DA 201900431 for alterations and additions to the existing building and change of use to a food and drinks premises with office at 182-184 Australia Street, Newtown is approved subject to the conditions at Annexure "A". ………………………… Sarah Bish Commissioner of the Court Annexure A (241032, 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: 29 June 2021