Land and Environment Court New South Wales Medium Neutral Citation: Tamvakeras v Inner West Council [2022] NSWLEC 1140 Hearing dates: 17 February 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court Orders that: 1) The appeal is upheld. 2) Consent is granted to Development Application No. DA/2021/0066 to demolish the existing structures, and construct a four (4) storey boarding house containing basement parking and landscaping subject to Annexure A at 50-52 Warren Road Marrickville being the whole of the land in Lots 25 and 26 in Deposited Plan 1733. 3) The exhibits can be returned except for Exhibits A, B, C and 1. 4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties have agreed that the Applicant is to pay the Respondent's costs thrown away in respect of the amended plans in the sum of $7,500 within 28 days of the date of this judgment. The Court notes that: 1) Inner West Council consented to the Applicant amending its plans as referenced in paragraph [1] of Annexure A, and uploaded the amended plans to the NSW Planning portal on 16 February 2022. Catchwords: DEVELOPMENT APPLICATION – demolition - 4 storey boarding house – compatibility with surrounding area – FSR – vehicular crossover and basement ramp – landscaping Legislation Cited: Acts Interpretation Act 1987, ss 33, 34 Environmental Planning and Assessment Act 1979, ss 4.1, 4.15, 4.16, 4.17, 8.7, 8.10, 8.11, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 55, 113, Sch 1 Land and Environment Court Act 1979, ss 17, 34 Marrickville Local Environmental Plan 2011, cll 4.3, 4.4, 5.10, 5.21, 6.2, 6.4, 6.5, Sch 5, State Environmental Planning Policy – Affordable Rental Housing 2009, cll 3, 4, 25, 26, 27, 28, 29, 30 30a, 50, 51, 52 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cl 21 State Environmental Planning Policy (Housing) 2021, cll 2, 3, 8, 26, 67, 68, 69, 70, Pt 3, Sch 7 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 cll 3, 5, 7, 9,10 Cases Cited: Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Texts Cited: Australian Standard, Acoustics—Aircraft noise intrusion— Building siting and construction, 2015 Department of Planning and Environment, Apartment Design Guide Department of Planning and Environment, Explanation of Intended Effect for a new Housing Diversity SEPP dated July 2020 Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Peter Tamvakeras (Applicant) Inner West Council (Respondent) Representation: Counsel: S Turner (Solicitor) (Applicant) G Hartley (Solicitor) (Respondent) Solicitors: Hartleys Solicitors (Applicant) Inner West Council (Respondent) File Number(s): 2021/151881 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal against the Inner West Council's (Council) deemed refusal of Development Application DA/2021/0066 (DA 21/66), lodged with Council on 7 February 2021, for demolition of existing structures and construction of a four-storey boarding house with basement parking at 50-52 Warren Road Marrickville. DA 21/66 includes: 1. 42 boarding rooms (29 double rooms and 13 single rooms); 2. 2 managers' rooms; 3. 1 common room; 4. 23 car spaces (4 accessible); 5. 8 motor bike spaces; 6. 17 Bike spaces within the basement with a further 8 spaces indicated on the ground level architectural plan (4 spaces shown on the landscape plan at ground level); 7. Central courtyard; 8. Rear deck off the common room; and 9. Associated landscaping 1. DA 21/66 is in relation to Lots 25 and 26 in Deposited Plan 1733 known as 50-52 Warren Road Marrickville NSW (the Land). The Land has a combined width of 27.43m at the frontage (north eastern side) and rear (south western side), and has a length of 40.234m on both side boundaries, giving a total area of 1,103.6m2. 2. Currently the Land contains two x two storey residential flat buildings with rear garages. Neither residential flat building is strata subdivided. 3. The locality is a mixture of development: 1. To the north west side of the Land the development consists of single storey dwelling houses with a two-storey dwelling at 44 Warren Road. 2. To the south east side of the Land is a two-storey residential flat building with a single storey commercial building to the rear, and a six storey mixed use development consisting of ground floor commercial with shop top housing above. 3. On the other side of Warren Road is the heritage listed Marrickville Uniting Church, and a single storey dwelling at 51 Warren Road. The heritage listing is pursuant to Marrickville Local Environmental Plan 2011 (Marrickville LEP2011) cl 5.10 Heritage Conservation, and referenced as 173 and 1128 respectively in Sch 5 of Marrickville LEP2011. 1. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 2. The Applicant is the registered proprietor of the Land, and eligible to lodge DA 21/66 with Council pursuant to s 4.1(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Applicant filed an appeal against the deemed refusal of DA 21/66 on 27 May 2021 in accordance with ss 8.7(1) and 8.10(1) of the EPA Act. 4. The Applicant complied with the time provisions under s 8.11 of the EPA Act and cl 113(1)(a) of the Environment and Planning Assessment Regulation 2000 (EPA Regulation) for the prescribed time for a deemed refusal of development consent. 5. DA 21/66 was notified on 15 February 2021, and renotified (same application) on 18 March 2021. Submissions were received between 18 March and 12 April 2021. Council received 9 submissions and a petition with 54 signatories. 6. The Court arranged for a conciliation conference pursuant to s 34(1) of the LEC Act which took place on 14 and 24 September, 14 October, 4, 11 and 29 November 2021. I presided over the s 34(1) conciliation conference. 7. At the conciliation conference on 29 November 2021, the parties were in agreement as to the amended plans and resolution of the contentions, and all but one of Council's draft conditions of consent. The parties were in dispute as to the application of cll 50 and 51 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and at the request of the parties the s 34(1) conciliation conference was terminated and a hearing set down for 17 February 2022 before me, in accordance with s 34(4)(b)(i) of the EPA Act. 8. As a result of the negotiations between the Applicant and Council, Council consented to the Applicant lodging amended plans pursuant to cl 55 of the EPA Regulation. Council advertised and renotified DA 21/66 by reference D/2021/0066. Council requested any submissions be lodged by 5 November 2021. Council received 2 submissions and a petition with 54 signatories. 9. The parties had some difficulty uploading the amended plans to the NSW Planning portal, and were able to do so on 16 February 2022, reference PAN 67082. 10. At the commencement of the hearing, Mr Hartley, on behalf of the Applicant, made an application that the hearing be terminated, and that the matter proceed by way of a s 34(3) conciliation conference and determination under the LEC Act. The parties had a s 34(3) Agreement they wished to tender. 11. I ruled against Mr Hartley's application for the following reasons: 1. Section 34 of the LEC Act provides, in part: 34 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court— (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner— (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. (4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and— (a) unless the parties consent under paragraph (b), must make a written report to the Court— (i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and (ii) setting out what in the Commissioner's view are the issues in dispute between the parties, or (b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings— 1. The s 34(1) conciliation conference as ordered by the Court had been terminated at the request of the parties on 29 November 2021, and in accordance with the request of the parties, I was requested to dispose of the proceedings by way of a hearing which was set down for 17 February 2022. 2. Mr Hartley argued that s 34(3) means that "If, either at or after a conciliation conference, agreement is reached" the Court must dispose of the matter in accordance with the agreement as reached between the parties. 3. In the present circumstances, the original s 34 conciliation conference was terminated at the request of the parties on 29 November 2021. The parties then requested that the matter be disposed of by a hearing pursuant to s 34(4)(b) of the EPA Act. The applicable subsection is not s 34(3) but s 34(4)(b) in that "if the parties' consent to the Commissioner disposing of the proceedings, must dispose of the proceedings". The parties had so consented on 29 November 2021, and therefore I must dispose of the proceedings pursuant to the hearing on 17 February 2021. 4. However, I do note that the parties now agree that no contribution is to be made by the Applicant to Council in relation to cll 50 and 51 of the SEPP ARH. There is now no contradicter raised by the Council in these proceedings. 1. The amended DA 21/66 which is presently before the Court seeks approval for a 4-storey boarding house with basement carparking and associated landscape works with the following features: 1. It complies with the permissible FSR 1.1:1 2. Proposed GFA is1199m2 3. 40 rooms including 4 x accessible rooms; 2 site Manager's rooms and 2 x communal rooms. 4. 21 Car spaces including 4 x accessible spaces. 5. 8 motor bike parking. 6. 25 bicycle parking 7. 410m2 landscaped area (36% of the Site area) 8. Plans as amended are as follows: Sheet & Rev No. Sheet Name DA 00.00 Rev G Cover Sheet JKM Architects DA00.20 Rev D Site Plan JKM Architects DA01.00 Rev D Existing Ground Plan JKM Architects DA01.01 Rev D Existing Roof Plan JKM Architects DA02.00 Rev D Ground Level Plan JKM Architects DA02.01 Rev G Level 01 Plan JKM Architects DA02.02 Rev G Level 02 Plan JKM Architects DA02.03 Rev G Level 03 Plan JKM Architects DA02.05 Rev E Roof Level Plan JKM Architects DA02.B1 Rev F Basement Level 01 Plan JKM Architects DA02.B2 Rev F Basement Level 02 Plan JKM Architects DA03.01 Rev D Existing Elevation JKM Architects DA03.11 Rev F Proposed Elevation – East and West JKM Architects DA03.12 Rev F Proposal Elevation – North and South JKM Architects DA04.01 Rev F North-South Section JKM Architects DA04.02 Rev F East-West Section JKM Architects DA04.03 Rev D Car park ramp section JKM Architects DA20.10 Rev E Shadow Diagrams JKM Architects DA20.11 Rev E Sun view diagrams JKM Architects DA20.20 Rev F Area Schedule JKM Architects DA20.30 Rev C Materials and finishes JKM Architects LDA-101 Rev D Existing Tree Plan Ground Ink LDA-102…Rev D Landscape Master Plan Ground Ink LDA-103…Rev D Landscape Plan first floor level Ground Ink LDA 104…Rev D Landscape Plan second floor level Ground Ink LDA-201…Rev D Landscape Details Ground Ink SW200…Rev 3 Stormwater Concept Design – Basement 2 JCO Consultants Pty Ltd SW201…Rev 3 Stormwater Concept Plan – Ground Floor Plan JCO Consultants Pty Ltd SW300…Rev 3 Stormwater Design – details sheet JCO Consultants Pty Ltd SW400…Rev 3 Erosion and Sediment – plan and details JCO Consultants Pty Ltd The legal framework for determining the development application 1. Section 4.15 of the EPA Act sets out the matters to be considered in determining DA 21/66: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and …… That apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. At the time the Applicant lodged DA21/66, on 7 February 2021, the environmental planning instruments which applied to the land were relevantly: 1. EPA Act, s 4.15; 2. Marrickville LEP2011; 3. Statement Environmental Planning Policy – Affordable Rental Housing 2009; 4. Statement Environmental Planning Policy – (Building Sustainability Index) BASIX 2004; 5. State Environmental Planning Policy No. 55 – Remediation; 6. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. 1. At the date of the hearing: 1. The SEPP ARH had been repealed – on 26 November 2021; 2. The State Environmental Planning Policy – (Housing) 2021 commenced on 26 November 2021(Housing SEPP). 1. I am required to interpret the General Savings provision in the Housing SEPP as to whether both it and the SEPP ARH apply concurrently, whether the Housing SEPP solely applies, or whether the SEPP ARH solely applies in relation to the determination of DA21/66. If the SEPP ARH applies, what weight, if any, should be given to the Housing SEPP? 2. In the present case, the parties jointly submit, having regard to para [31] in Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 ('Emag'), that the Court should have regard to both the SEPP ARH and Housing SEPP. In Emag, Commissioner Horton upheld the argument put forward by the Respondent Council in para [30] – "According to Mr Norton, counsel for the Respondent, as the wording of the savings provision at cl 2(a) does not explicitly stay the provisions of the Housing SEPP, it should be assumed that the drafters of the savings provision intended for the terms of the Housing SEPP to operate from its commencement, in effect, alongside those of SEPP ARH." [31]"So understood, the provisions of both the SEPP ARH and Housing SEPP are binding on the Court, and the Court should undertake the evaluation required of it by s 4.15 of the EPA Act by applying the applicable controls in both SEPPs, with regrad to the provisions of both the SEPP ARH and the Housing SEPP." 1. Schedule 7 of the Housing SEPP sets out its savings and transitional provisions – 1 Definitions "In this Schedule – commencement date means the day on which this Policy commenced. Repealed instrument means an instrument repealed under Chapter 1, s10. 2 General Savings Provisions "The former provisions of a repealed instrument continue to apply to the following – (a) a development application made but not yet determined, on or before the commencement date, ……" 1. Cl 8 of the Housing SEPP provides – Unless otherwise specified in this Policy if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 1. Cl 8 of the SEPP ARH provides – If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 1. In Emag, at para [35]-[38] the Applicant submitted that: 1. "…the wording of the savings provision is clear when read in its plain terms, and has the effect of continuing the provision of the SEPP ARH in respect of the development application, which was made, but not determined, prior to commencement of the Housing SEPP. 2. "Such a reading is consistent with the wording of cl 8 in the Housing SEPP, in which the relationship with other environmental planning instruments is set out." 3. "…the relationship of the Housing SEPP to the SEPP ARH is 'otherwise specified' in the Housing SEPP, by virtue of the savings provision at Sch 7, cl 2 which instructs that the former provisions of the repealed SEPP ARH continue to apply in circumstances where a development application has been made, but has not been determined, as in this case." 1. The possible ambiguity in interpreting the General Savings provision in Sch 7 cl 2 of the Housing SEPP in conjunction with cl 8 of the Housing SEPP and SEPP ARH, is that the legislators did not state their intention as clearly as they have in other environmental planning instruments, e.g. cl 21(1) of the State Environmental Planning Policy (Coastal Management) 2018 which commenced on 3 April 2018: Cl 21(1) – "The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to which this Policy applies." 1. The Acts Interpretation Act 1987 gives assistance. 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material— (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision— (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes— …… (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, …… (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to— (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage. 1. On the Department of Planning and Infrastructure website, under the heading of the Housing SEPP: Frequently Asked Questions – it states that the provisions of the former SEPP (meaning SEPP ARH) will continue to apply to: "development applications and concept development applications made, but not determined, on or before the day the Housing SEPP commences, or staged development applications made subsequent to such concept development applications" 1. Unfortunately State Environmental Planning Policies are made under delegated authority, and there is no second reading speech which could assist in revealing the intention of the General Savings' provision. The following references were made by Minister Stokes on 24 November 2021, (Hansard p 48) advising the NSW Parliament, inter alia, that the Housing SEPP was about to be gazetted: "We will soon finalise our new housing State Environmental Planning Policy, which will create new opportunities for seniors housing, affordable housing, and new types of housing such as build to rent and co-living housing by creating pathways for new housing across the spectrum in the right locations. It is about dwelling type. It is also about different types of tenure as well." 1. However, further guidance can be gleaned from the Department of Planning, Industry and Environment's 'Explanation of Intended Effect for a new Housing Diversity' SEPP dated July 2020 (EIE). Under the heading of 'Key Components of the new Housing Diversity SEPP, the EIE states, inter alia – 1. "It is proposed that the new SEPP will introduce definition and planning provisions for three new types of housing, being: * build-to-rent housing; * purpose built student housing; and * co-living 1. "This will provide new opportunities for institutional investment in residential development in NSW, creating jobs in planning, construction, and on-going management. 2. "in the context of feedback from councils and communities, as well as in the context of recent review of some provisions of the Government's housing-related SEPPs, this EIE also set out a number of changes that are proposed to be made to the ARHSEPP and Seniors SEPP provisions, including: * Requiring boarding houses to be affordable; * Removing the requirement for boarding houses to be mandated within the R2-Low Density Residential zone;'amending the FSR bonus for boarding house development to 20%; …… * Amend the SEPP provisions to clarify that development standards in a local environmental plan prevail to the extent of any inconsistency with the SEPP; and …." 1. In EIE, under the heading "Co-living Introduction" it states: 1. "As with student housing, the boarding house provisions of the ARHSEPP are currently being used to develop co-living developments, otherwise known as 'new generation' boarding house. These are developments that share many features with traditional boarding houses, such as small private rooms for one or two people and access to communal living areas and other facilities. However, new generation boarding rooms are typically self-contained, with private bathroom and kitchenette facilities. The proposed introduction of an affordability requirement for boarding house development as set out above in this EIE would mean that this type of housing is no longer facilitated by the planning system. 2. "Evidence suggests that there is demand for this type of small and self-contained dwelling – particularly when located in close proximity to reliable public transport and services. The demand for co-living is driven by affordability issues and growth in single person households. The demand is also driven by changing preferences, with many people willing to trade size of living spaces for access to desirable locations." 1. SEPP ARH – Cl 3 sets out the Aims of the Policy: The aims of this Policy are as follows— (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, …… 1. The Housing SEPP sets out its Principles of Policy in cl 3 as follows: Policy The principles of this Policy are as follows— (a) enabling the development of diverse housing types, including purpose-built rental housing, (b) encouraging the development of housing that will meet the needs of more vulnerable members of the community, including very low to moderate income households, seniors and people with a disability, (c) ensuring new housing development provides residents with a reasonable level of amenity, (d) promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services, (e) minimising adverse climate and environmental impacts of new housing development, (f) reinforcing the importance of designing housing in a way that reflects and enhances its locality, (g) supporting short-term rental accommodation as a home-sharing activity and contributor to local economies, while managing the social and environmental impacts from this use, (h) mitigating the loss of existing affordable rental housing. 1. The aims set out in the SEPP ARH are reflected, and expanded in the principles set out in the Housing SEPP. Whereas the SEPP ARH is particularly relevant to social and affordable rental housing, the Housing SEPP has expanded the types of housing to include build-to-rent housing, purpose built student housing; and co-living.. The boarding house provisions in the Housing SEPP would exclude the current development, but the development in DA21/66 is closely aligned with the co-living provisions of the Housing SEPP. 2. Having considered the submissions by Mr Hartley and Mr Turner in the present case, and Emag, I do not consider that it is clear that both the SEPP ARH and Housing SEPP apply. In a situation where there are competing provisions (e.g. cl 29(1)(c) in the SEPP ARH v cl 69(2)(a) in the Housing SEPP regarding the allowable FSR), then 1 environmental planning instrument would prevail. 3. In the present case, I consider that the words of Sch 7 cl 2 of the Housing SEPP are clear in their plain terms as is also cl 8 ('unless otherwise specified'), and that in this situation where a development application has been lodged and not yet determined, the former environmental planning instrument applies. I have also taken into account the limited information received from the Department of Planning & Infrastructure's website, para [30] above, Minister Stokes' reference to the Housing SEPP in Hansard, para [31] and the Department's explanation in its EIE , para [32] and [33] above. Although these references are not clear that the Housing SEPP should not be considered, I have also taken into account the desirability of persons being able to rely on the ordinary meaning conveyed within the meaning of subs (3)(b); and the need to avoid prolonging legal or other proceedings without compensating advantage within the meaning of subs (3)(c) of s 34 of the Acts Interpretation Act 1987. Therefore, the applicable environmental planning instrument to have precedence under s 4.15 (1)(a)(i) of the EPA Act is the SEPP ARH. 4. As the General Savings provision in the Housing SEPP is silent on "and this Policy does not apply", the question to be answered is: Should the Housing SEPP be considered as certain and imminent for the period from when the last development application lodged prior to 26 November 2021 is determined or withdrawn? In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 ('Terrace Holdings') the Court of Appeal held: "1) The trial judge did not err in law in treating the minimum floor space standard in cl 51(2) of LEP 2000 as a relevant matter for consideration, and in placing significant weight upon the fact that LEP 2000 was actually in force at the time of the proceedings before him. [51], [54]-[55], [57]-[58], [68] (a) Clause 6(2) of LEP 2000 (the transitional provision) and s79C(1)(a)(ii) of the EPA Act both require that proper regard be given to draft instruments that have been exhibited. Proper regard means that a consent authority may give weight to its perception of the imminence of relevant provisions in a draft exhibited instrument; or if it has already come into force, to treat it as if its provisions were "certain and imminent": Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138; Ward v Warringah Shire Council (1963) 10 LGRA 114 at 119-120; Pymble Industrial Village Pty Ltd v Kur-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 201-2; Mathers v North Sydney Council [2000} NSWLEC 84 at [42]; Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49 at [36]-[37]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297-8; Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works (1985) LGRA 346 at 353. [46]-[47] , [49]-[50] (i) The trial judge was entitled to assess and weigh expert evidence as to the reasonableness of applying the minimum floor standard in cl 51(2) of LEP 2000 and give considerable weight to its purpose of protecting the existing retail hierarchy . [54]-[55], [66] (b) The weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant factors are not taken into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 666 [57] 2) The trial judge did not err in considering Draft SEPP 66 to be relevant to the appeal to the Land and Environment Court, since it contained matters pertaining to the "public interest", to be taken into account according to s79C(1)(e) of the EPA Act. [80] (a) Transitional provisions, which state that provisions of a draft planning or policy instrument are inapplicable to a development application made but not finally determined before its commencement, do not force the consent authority to shut its eyes to otherwise relevant provisions of the draft instrument. [78] (b) Nothing in the EPA Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". A consent authority may range widely in the search for material as to the public interest: Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235. [81] HELD also per Spigelman CJ (Ipp JA agreeing): 1) The trial judge was entitled to give considerable weight to the purpose of 51(2) of the draft LEP 2000 - namely to protect the existing retail hierarchy. [3], [7] (a) The purpose of a draft instrument is entitled to be given significant weight in deciding whether to reject an application brought under a pre-existing planning instrument that would undermine the draft instrument's purpose in a substantial way. [7]" 1. Section 4.15(1)(a)(i) of the EPA Act requires consideration of any environmental instrument, and (1)(a)(ii) also requires consideration of any proposed environmental instrument that has been subject to public consultation. I have already determined that the SEPP ARH and Housing SEPP should not be considered concurrently. However, applying Terrace Holdings the Housing SEPP should be considered on the basis that it is certain and imminent, and in the public interest that it be considered, as it is shaping the future development in boarding houses (SEPP ARH) and co-living (Housing SEPP). In considering the weight to be given to the Housing SEPP, I have taken into account the purpose of the co-living provisions and the need for affordable rental housing. The development in DA21/66 increases the amount of affordable rental housing from 17 units to 36 boarding rooms, four of which are accessible rooms. The parties agree, as do the town planning experts, that the development is compatible with the character of the local area. SEPP ARH 1. The aims of SEPP ARH relevantly are: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, …… (f) to support local business centres by providing affordable rental housing for workers close to places of work, …… 1. Pursuant to cl 4 of SEPP ARH, 'boarding rooms' are defined as "a room or suite of rooms within a boarding house occupied or so constructed or adapted as to be capable of being occupied by one or more lodgers." The definition of 'boarding house' in Marrickville LEP2011 is as set out below: "boarding house means a building or place— (a) that provides residents with a principal place of residence for at least 3 months, and (b) that contains shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (c) that contains rooms, some or all of which may have private kitchen and bathroom facilities, and (d) used to provide affordable housing, and (e) if not carried out by or on behalf of the Land and Housing Corporation—managed by a registered community housing provider, but does not include backpackers' accommodation, co-living housing, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. 1. Although the definition of 'boarding house' differs between the SEPP ARH and Marrickville LEP2011, when the 'must not refuse' clauses in the SEPP ARH are taken into account, the practical outcomes are similar. Development to which Division applies Division 3: Boarding Houses 25 Definition In this Division— communal living room means a room within a boarding house or on site that is available to all lodgers for recreational purposes, such as a lounge room, dining room, recreation room or games room. 1. DA21/66 complies with cl 25 as the 2 communal rooms meet the definition. 26 Land to which Division applies This Division applies to land within any of the following land use zones or within a land use zone that is equivalent to any of those zones— , (d) Zone R4 High Density Residential, …… 27 Development to which Division applies (1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses. …… 28 Development may be carried out with consent Development to which this Division applies may be carried out with consent. 1. The boarding house development in DA 21/66 is permissible under cll 26-28 of SEPP ARH and Zone R4 of Marrickville LEP2011. 2. In relation to cl 29 Standards that cannot be used to refuse consent: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than— …… (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus— (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. 1. The development complies with the FSR control: if the proposed development has an FSR less than 1:1 (being the 0.6:1 FSR permitted by cl 4.4 of Marrickville LEP2011 plus an additional 0.5:1 afforded by cl 29(2)(c)(i) of SEPP ARH), the consent authority must not refuse DA 21/66 on grounds of density or scale. The proposed development in DA 21/66 has an FSR of 1.08:1 which is less than an FSR of 1.1:1. The FSR therefore complies with the FSR control. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds— (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, 1. Marrickville LEP2011 Height of Building Map provides for a height control of 14m under the R4 zoned land. The development in DA21/66 has a height of 12.75m, and therefore complies with the height control. (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, 1. The amended plans provide for a landscape treatment which is compatible with the streetscape in which the building is located. The landscape plans are referenced in par (1) of Annexure A and for the streetscape in particular plan LDA-102/issue D Landscape Masterplan dated 9 February 2022 by Ground Ink (Ex B tab 3). Street trees have been placed appropriately together with landscaping between the road reserve and the building line. "(c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter," 1. There are two (2) communal rooms in DA21/66, and both communal rooms receive 3 hours of direct sunlight between 9am and 3pm in mid-winter. "(d) private open space if at least the following private open space areas are provided (other than the front setback area)— (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation." 1. In relation to the requirement for private open space: 1. For the boarding house lodgers, an area of at least 20m2 is provided adjacent to the common room at ground floor level; 2. In relation to the managers' room: an area of at least 8m2 with a minimum dimension of 2.5m is provided at the ground floor level for both managers' rooms. "(e) parking if— (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and (iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, 1. The parking spaces to be provided are: 1. 21 car parking spaces for the boarding rooms including 4 accessible spaces; and including one (1) space for each manager. 2. 8 Motorbike parking spaces. 3. 25 Bicycle parking spaces. 1. The development in DA21/66 complies with the parking requirements. "(f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least— (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case." 1. The room sizes in DA21/66 comply with the accommodation control in SEPP ARH. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. 1. Whilst the control is discretionary, it is noted that each boarding house room has private kitchen and bathroom facilities. 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following— (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided," (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, ……. (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. ……. 1. The development in DA21/66 complies with the provisions of cl 30(1) as set out above because: 1. It has two (2) communal rooms; 2. No boarding room has an area of more than 25m2; 3. The Plan of Management (Annexure A, cl [1] and Ex B tab …) provides that no boarding room is to be occupied by more than two lodgers. The rooms are designated single or double. 4. The boarding house has adequate bathroom and kitchen facilities as these facilities are provided for each room. 5. There are two (2) manager's rooms provided as required for 36 boarding rooms. 6. The development in DA21/66 is required to provide 5 bicycle and 5 motorcycle parking spaces (1 for every 5 boarding rooms). This development provides 25 bicycle spaces and 8 motorcycle parking spaces. 30A Character of local area "A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area." 1. The parties agree that they have considered in detail whether the design of DA21/66 is compatible with the character of the local area as follows: 1. The existing buildings on the Land are two (2) storeys; 2. The proposal in DA21/66 aligns with the front setbacks within the streetscape; 3. It is setback from both side boundaries; 4. It has a three (3) storey appearance with the fourth level contained within the roof; 5. The building's design has adopted the subdivision pattern within the street; 6. All street trees are retained, and the proposed landscaping breaks up, and softens the appearance of the building in the streetscape; 7. The building does not result in any adverse shadowing impacts; 8. All windows face the street or the rear, except for those side windows that are contained behind a planter box (thus preventing overlooking). The planter boxes are referenced on plans referred to in par (1) of Annexure A, being plans DA02.01 Level 01 Plan Rev G; DA02.101 Level 02 Plan Rev G; and Plan DA20.30 Materials and Finishes Rev C (Ex B tab 1). 9. There are onsite arrangements for temporary bin collection, and with 2 onsite managers ensuring bins are not left to be presented to the street or left on the street. 10. The character of the local area is eclectic. It consists of single and two-storey dwelling houses, and a six-storey mixed use development nearby at the corner of Warren and Illawarra Road. The character of the local area reflects the nearby zones of B1 Neighbourhood Centre; B2 Local Centre; R2 Low Density Housing, RE1 Public Recreation, and the zoning of the Land as R4 High Density Residential. 11. The design of DA21/66 is consistent with the character of the local area, and it is noted that it is below Council's height control of 14m together with the 4th storey built into the roof line as a pitched roof. 50 Reduction of availability of affordable housing (1) A person must not do any of the following in relation to a building to which this Part applies except with development consent— (a) demolish the building, (2) In determining a development application referred to in subclause (1), the consent authority is to take into account the guidelines and each of the following— (a) whether there is likely to be a reduction in affordable housing on the land to which the application relates, (b) whether there is available sufficient comparable accommodation to satisfy the demand for such accommodation, (c) whether the development is likely to cause adverse social and economic effects on the general community, (d) whether adequate arrangements have been made to assist the residents (if any) of the building likely to be displaced to find alternative comparable accommodation, (e) the extent to which the development contributes to any cumulative loss of affordable housing in the local government area, (f) the structural soundness of the building, the extent to which the building complies with any relevant fire safety requirements and the estimated cost of carrying out work necessary to ensure the structural soundness of the building and the compliance of the building with the fire safety requirements, (g) whether the imposition of a condition requiring the payment of a monetary contribution for the purposes of affordable housing would adequately mitigate the reduction of affordable housing resulting from the development, …… 51 Contributions for affordable housing (1) For the purposes of section 7.32 (1) of the Act, this Policy identifies a need for affordable housing on land within the Greater Sydney region and on land within the local government area of Newcastle or Wollongong City. (2) For the purposes of section 7.32 (3) (b) of the Act, this Policy authorises a condition to be imposed under section 7.32 of the Act if— (a) the consent authority, when determining a development application referred to in clause 50 (1), is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, and …… 1. The parties agree that the ABC Planning Report Pursuant to cl 50 of SEPP ARH dated October 2021 (Ex B tabs 9 and 10) satisfied the provisions of cl 50 of the SEPP ARH, and therefore there is no requirement to impose a contribution pursuant to cl 51 of the SEPP ARH. ABC Planning investigated rental within the required area, and analysed the requirement under cl 52(2), and concluded in par [9] of its report: "A condition requiring the payment of an affordable housing contribution cannot be lawfully imposed. The proposed development will result in demotion (sic) of the existing buildings which will result in the loss of 17 dwellings that meet the definition of 'affordable housing'. The existing buildings will be replaced by a boarding house comprising 36 boarding rooms, all of which re likely to meet the definition of 'affordable housing' based on a comparison of apartment rental market in Marrickville. The proposed development is likely to result in an increase of 21 (now 19) dwellings which meet the definition of affordable housing. …. The proposed development will improve the availability of affordable housing rather than reduce affordable housing." 1. I accept the evidence of ABC Planning as set out in Ex B tabs 9 and 10 in relation to the imposition of a financial contribution for affordable housing pursuant to cll 50 and 51 of SEPP ARH that there is no basis for Council to impose such a contribution. I note the reference above to '38' boarding rooms which has now been reduced to 36 boarding rooms but the rationale of ABC Planning in relation to cll 50 and 51 of the SEPP ARH is still applicable. Housing SEPP 1. The definition of 'boarding house' differs between the Housing SEPP and the SEPP ARH. Relevantly, the definition in the Housing SEPP limits the term 'boarding houses' to development carried out by or on behalf of the Land and Housing Corporation or managed by a registered community housing provider (cl 26(2) of the Housing SEPP). 2. However, DA21/66 meets the criteria of 'co-living housing' as set out in Pt 3, cll 67-70 of the Housing SEPP. 3. The permissibility of the proposed development is established by cl 67 as residential flat buildings are permissible in Zone R4 under Marrickville LEP2011. 68 Non-discretionary development standards—the Act, s 4.15 (1) The object of this section is to identify development standards for particular matters relating to development for the purposes of co-living housing that, if complied with, prevent the consent authority from requiring more onerous standards for the matters. (2) The following are non-discretionary development standards in relation to development for the purposes of co-living housing— (a) for development in a zone in which residential flat buildings are permitted—a floor space ratio that is not more than— (i) the maximum permissible floor space ratio for residential accommodation on the land, and (ii) an additional 10% of the maximum permissible floor space ratio if the additional floor space is used only for the purposes of co-living housing, … (c) for co-living housing containing more than 6 private rooms— (i) a total of at least 30m2 of communal living area plus at least a further 2m2 for each private room in excess of 6 private rooms, and (ii) minimum dimensions of 3m for each communal living area, (d) communal open spaces— (i) with a total area of at least 20% of the site area, and (ii) each with minimum dimensions of 3m, (e) unless a relevant planning instrument specifies a lower number— (i) for development on land in an accessible area—0.2 parking spaces for each private room, or (ii) otherwise—0.5 parking spaces for each private room, …… 1. Subparagraphs (b), (f) and (g) of cl 68(2)(a) do not apply to DA21/66. 2. In relation to the remaining requirements in cl 68(2), each requirement has been considered on the evidence, but taking into account the setting, facts and circumstances of this case, noting that Council has considered the requirements and concluded that the development is capable of approval, and where there is a conflict, I give more weight to the requirements under SEPP ARH: 1. FSR requirement in cl 68(2)(a)(i): the FSR requirement is met in the SEPP ARH. The FSR is not met in the Housing SEPP (FSR 0.6:1 + 10%), but the difference is overcome by DA21/66 upholding the purpose of supplying the new generation accommodation, more affordable rental housing, being built in a R4 High Density zone, and the design being compatible with the character of the local area together with substantially complying with the discretionary provisions in cl 69(1). 2. The communal living area is met in the SEPP ARH. It is not met in the Housing SEPP under cl 68(2)(c), but the difference is not such as to determine DA21/66 by way of refusal. I repeat the reasons given in (1) above. 3. The communal open space is met in the SEPP ARH. It is not met in the Housing SEPP cl 68(2)(d), but the difference is not such as to determine DA21/66 by way of refusal. I repeat the reasons given in (1) above. 4. The requirements of cl 68(2)(e) for car parking in the Housing SEPP are met. 69 Standards for co-living housing (1) Development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that— (a) each private room has a floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, that is not more than 25m2 and not less than— (i) for a private room intended to be used by a single occupant—12m2, or (ii) otherwise—16m2, and (b) the minimum lot size for the co-living housing is not less than— …… (iii) for development on other land—the minimum lot size requirements for residential flat buildings under a relevant planning instrument, and (d) the co-living housing will contain an appropriate workspace for the manager, either within the communal living area or in a separate space, and (e) for co-living housing on land in a business zone—no part of the ground floor of the co-living housing that fronts a street will be used for residential purposes unless another environmental planning instrument permits the use, and (f) adequate bathroom, laundry and kitchen facilities will be available within the co-living housing for the use of each occupant, and (g) each private room will be used by no more than 2 occupants. 1. The parties agree that DA21/66 complies with the requirements of cl 69(1) as set out above. I agree that DA21/66 complies with the requirements of cl 69(1) as detailed under the analysis of SEPP ARH, and further provided for in the Plan of Management (Ex B tab 6) and note each manager's housing includes an appropriate workspace. (2) Development consent must not be granted for development for the purposes of co-living housing unless the consent authority considers whether— (a) the front, side and rear setbacks for the co-living housing are not less than— (ii) for development on land in Zone R4 High Density Residential—the minimum setback requirements for residential flat buildings under a relevant planning instrument, and (b) if the co-living housing has at least 3 storeys—the building will comply with the minimum building separation distances specified in the Apartment Design Guide, and (c) at least 3 hours of direct solar access will be provided between 9am and 3pm at mid-winter in at least 1 communal living area, and (d) at least 1 bicycle parking space will be provided for each private room, and (e) at least 1 motorcycle parking space will be provided for every 5 private rooms, and (f) the design of the building will be compatible with— (i) the desirable elements of the character of the local area, or (ii) for precincts undergoing transition—the desired future character of the precinct. …… 1. The parties considered whether DA21/66 complied with the provisions of cl 69 (2) above and considered that DA21/66 is capable of approval. Although DA21/66 is not compliant in every aspect of cl 69(2), (particularly in relation to compliance with the Apartment Design Guide which applies because the development will be four (4) storeys) the town planners, Mr Anthony Betros for the Applicant and Mr Glen Hugo for the Council, in Ex C, pars [6] – [13] support approval for DA21/66 for the reasons which are set out below under their response to Contention 1: Compatibility in par [83] below. I accept the opinion of the town planners, and after considering the matters raised in cl 69(2), I agree that DA21/66 is capable of approval. 70 No subdivision Development consent must not be granted for the subdivision of co-living housing into separate lots. 1. The two lots in DA21/66 will be consolidated in accordance with condition 23 in Annexure A. State Environmental Planning Policy No. 55 Remediation of Land (SEPP 55) 1. Under cl 7(1) of SEPP 55, the consent authority must not grant consent to development unless it has considered whether the Land is contaminated, or if it is potentially contaminated whether after remediation it will be ready for residential use under DA21/66. The parties agree that the history of the use of the Land is residential. I accept their advice and find that the land is suitable for its residential purpose pursuant to SEPP 55. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) 3 Aims of Policy The aims of the Policy are – (a) to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and (b) to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation. 1. The Vegetation SEPP applies to the Land pursuant to: 1. Clause 5(1)(b) as it is in Zone R4 land. 2. Clause 7(1) as a person must not clear vegetation in a non-rural area of the State to which Part 3 (Council permits for clearing of vegetation in non-rural areas) applies, without the authority conferred by a permit granted by the council under Part 3. 3. Clause 9(1) provides that Part 3 applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which Part 3 applies. 4. Clause 10(1) provides that Council may issue a permit to the Applicant to clear vegetation to which Part 3 applies. 1. Part 2.20 of Marrickville Development Control Plan 2011 (Marrickville DCP2011 – Tree Management DCP) has been made in accordance with the Vegetation SEPP. Council has established canopy target for the Zone R4 Residential land to be 25% of canopy target. 2. Clause 2 of the Tree Management DCP sets out the objective guide for the protection and management of trees within Council's Local Government Area: "01 To establish a co-ordinated approach to the assessment and management of trees. 02 To ensure the safety of the community, private property and public infrastructure assets. 03 To protect trees within and adjacent to development sites and to ensure that all new development provides an opportunity for existing and new trees to grow." …… 1. Clause 5.1 of Council's Tree Management DCP provides in C4 that Council consent is required before any clearing of vegetation (removal or pruning of trees) are carried out other than the activities referred to in C1. 2. The Applicant's filed an Arborial Impact Assessment by Lee Hancock Consulting Arborist AQF Level 5 filed 27 May 2021 (Ex A Tab 11), together with the landscape plans LDA-001, LDA-101, lDA-203, LDA203, LDA-104 and LDA-201 prepared by Ground Ink (Annexure A, condition (1) and Ex B tab 3). 3. The Council has considered the Applicant's application for removal of trees and planting of new trees in accordance with the Vegetation SEPP and Council's Tree Management DCP, and advise that the landscape plans as put forward by Ground Ink are such that consent should be granted to DA21/66. Further, the Applicant's Statement of Environmental Effects dated January 2021 (Ex A tab 3) on p 40 states, inter alia – "The landscape plan by Groundink(sic) provides for a range of native and non-native species which complement the landscaping found within the locality." 4. The removal of trees is supported subject to conditions of consent requiring the planting of replacement trees as set out in Annexure A condition 1, and conditions 13, 33, 52 and 61. The removal of the trees as identified in DA21/66 is reasonable. State Environmental Planning Policy (Building Sustainability Index: BASIX) (BASIX SEPP) 1. Pursuant to the BASIX SEPP, and cl 3 the EPA Regulation, DA21/66 is a BASIX affected development, containing a BASIX affected building. Clauses 2(1)(l) and 2A(1) of Sch 1 to the EPA Regulation requires a development for any BASIX affected development to be accompanied by a BASIX certificate(s) for the development. The proposal development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. The development in DA21/66 was accompanied by a BASIX certificate (Ex A tab 5), and an updated BASIX certificate was supplied to reflect the amended plans (Ex B tab 1). The requirement for a BASIX certificate has been met. 2. The development standards required to be met by DA21/66 in the Marrickville LEP 2011 have already been referred to above, but for the sake of completeness I set them out in summary below: 1. The Land is within a Zone R4 High Density Residential and both boarding houses and co-living developments are permissible with consent. 2. The DA21/66 complies with the objectives of the Zone R4 High Density Residential as set out below: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for well connected neighbourhoods that support the use of public transport, walking and cycling. 1. The height control within the Zone R4 Residential is 14m pursuant to cl 4.3 of the Marrickville LEP2011, and the height of the built form within DA21/66 is 12.75m. 2. Clause 4.4 Floor Space Ratio control provides 0.6:1 plus 0.5:1 bonus FSR pursuant to the SEPP ARH. The development in DA21/66 has an FSR of 1.08:1, and therefore complies with the FSR of 1.1:1. 3. Clause 5.10 heritage conservation: the buildings on the Land are not a heritage item, nor located within a heritage conservation area. A Heritage Assessment Report was filed by Mr Stephen Davies of Urbis on 27 May 2021 (Ex A tab 10), and in relation to the built form on the Land Mr Davies concluded on p 14 when discussing the significance of the two (2) buildings on the Land: "…..we do not consider that the subject buildings meet the threshold for historical, associative, social, aesthetic, rarity or research significance to justify a listing as local heritage items." The Land is not within a heritage conservation area under cl 5.10 Marrickville LEP2011 (Ex 2 pp 13 and 69 – Heritage Map). I am satisfied that DA21/66 complies with the objectives in cl 5.10(1) of Marrickville LEP2011. 4. Clause 5.21 is not applicable as the Land is not flood affected. 5. Clause 6.1 Acid sulfate soils: On Council's Acid Sulphate Soils Map, the Land is classified as Class 5 acid sulphate soils land. The Land is not located within 500m of Class 2 land. The DA21/66 does not involve works below 5m AHD and will not lower the water table below 1m AHD adjacent to Class 1, 2, 3 or 4 land. Therefore, the DA21/66 does not require the preparation of an acid sulphate soils management plan (Ex 2 pp 19 and 70). 6. Clause 6.2 earthworks. The objectives of cl 6.2 are: 1. "to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, 2. "to allow earthworks of a minor nature without requiring separate development consent." 1. The Applicant filed a Preliminary Geotechnical Assessment by Geofirst Pty Ltd on 27 May 2021 (Ex A tab 14) together with Stormwater Plans on 20.09.22 (Ex B tab 4) and Council assessed the earthworks in accordance with cl 6.2. The parties agree the DA21/66 complies with cl 6.2 subject to the conditions of consent in Annexure A. 2. Clause 6.4 Terrestrial Biodiversity – the Land is not identified as having biodiversity values on the Natural Resource – Biodiversity Map (Ex 2 pp 21 and 71). 3. Pursuant to cl 6.5 Development in areas subject to aircraft noise – the Land is located on land near the Kingsford Smith Airport and in an ANEF contour of 20 or greater than 20. The Council has considered the Applicant's material in this respect and advises that the DA21/66 warrants approval. I note condition 22 in Annexure A requires the Applicant to provide an Acoustic Report demonstrating compliance of the development with the relevant provisions of Australian Standard AS 2021:2015 Acoustics – Aircraft noise intrusion – Building siting and construction prior to the issue of a construction certificate. 4. Pursuant to s 4.15(1)(d) of the EPA Act, the consent authority is required to have regard to submissions made by members of the public in respect of DA 21/66. The submissions made in response to the advertising and notification of DA 21/66 are set out in Ex 2 from p 529. The submissions made in response to the advertising and notification of the amended DA 21/66 are set out in Ex 2 from p 558; 1. All the submissions given to Council were perused by the Court prior to the s 34(1) commencing. No objector made oral submissions at the commencement of the s 34(1) conciliation conference. 2. Council advised the issues raised by the objectors had been resolved by the amended plans and the conditions of consent in Annexure A. 3. As a result of the re-notified (amended) DA 21/66, Council received 2 submissions, and the issues raised in the 2 submissions are summarised below: 1. Too many occupants, density and style of accommodation 2. Few parking spaces 3. Traffic 4. Character 5. Building height 6. Privacy 7. Sun 1. Council advised the 2 objectors of the hearing, but no response was received, and neither objector appeared. The Court perused the further submissions. 2. The parties agree that the amended plans and conditions of consent in Annexure A resolve the planning and merit issues raised by the objectors. I agree with the assessment of the parties in this regard. Draft Inner West Local Environmental Plan 2021 (draft LEP2021) 1. The draft LEP2021 has been placed on exhibition, and I am advised by Council that it is reasonably imminent and certain. The draft LEP2021 contains a savings provision: "1.8A If a development has been made before the commencement of this Plan in relation to land to which this Plan applies, and the application has not been finally determined before the commencement, the application must be determined as if this Plan had not commenced." 1. Although the draft LEP2021 is certain and imminent and it must be considered pursuant to s 4.15(1)(a)(ii), Council submits that there are no substantive changes in the draft LEP 2021 which would affect the evaluation of the subject DA21/66. I accept Council's submission. Council's Contentions 1. Council advised that it considers that the contentions in the Statement of Facts and Contentions (Ex 1) have now been satisfactorily addressed by the amended application, and supports a grant of consent to DA21/66 subject to the conditions of consent in Annexure A. However, I set out the Contentions below and explain how they have been resolved. 2. Contention 1: Compatibility with the area: the town planners agree (Ex C Town Planners' Joint Report, pars [6]-[13] that the amended plans suitably address the particulars in the contention, and that they achieve an appropriate degree of compatibility, inter alia – 1. Change in the form of the 4th storey from a complete 4th storey containing 10 boarding rooms to a roof form containing five rooms plus a communal room. Figure 1: Town Planners' Joint Report Exh C showing the unamended proposal for the development DA21/66. Figure 2: from the Town Planners Joint Report Exh C showing the amended development for DA21/66 being 3 storey plus roof form with fragmented front elevation. 1. "Change in the façade to divide the built form into two distinct forms, along with reduced street-facing fence height, reduced driveway width and increased deep soil planting in the front setback. The effect of these amendments is demonstrated in Figure 1 and 2 above." 2. "The incorporation of a fragmented façade with landscaping on the 1st and 2nd floor balconies also assists in achieving a modulated façade which reduces the scale of the built form in its context." 3. "The proposed amendments also reduce the bulk and scale of the built form as it relates to both adjoining neighbours on either side and those to the rear. An increased rear setback achieves this from 14.08m to 16.33m. The increased setback and conversion of the upper level from a full storey to a roof form, reduces the proposal's visual bulk and shadow impacts as viewed from the rear neighbours. The inset of the upper habitable areas from the sides and change from sheer vertical side walls to a sloping roof form also reduced the visual bulk of the bult form as it presents to neighbouring properties on either side." 4. "The orientation of all rooms and balconies for the above-ground dwellings is to the front and rear, which preserves the visual and acoustic privacy of adjoining dwellings on either side. The provision of deep soil planting and the extensive 16-metre rear setback also ensure that the visual and acoustic privacy of properties to the rear and across Warren Rd is also preserved." 5. "The proposed height and FSR are compliant with the applicable controls. The above-mentioned changes achieve an acceptable relationship of the built form with the desired future character and existing buildings surrounding the site." 6. "The built form as amended, will also appear as compatible with the larger mixed-use development further to the east and will thereby achieve an appropriate transition to properties to the west along Warren Rd in the R2 Low-Density Residential zone. It is also noted that other single dwelling houses are being replaced by boarding houses along the opposite side of Warren Rd, which confirm the transitional nature of the area." 7. "The change from high masonry walls along the street frontage to low rise palisade fencing with deep soil planting and canopy trees behind also assist in achieving a more compatible relationship with the character of the existing area." 1. The abovementioned amendments also achieve a suitably compatible relationship with the heritage-listed dwellings opposite. These dwellings are sited 20-30m from the front of the build form whilst canopy trees in the front setback, combined with street trees, also assist in achieving a compatible outcome. 2. Contention 2: FSR/Visual Bulk 1. The Town Planners agree: 1. (Ex C par [15]) that the FSR of the amended proposal has been calculated in accordance with the definition of gross floor area, and that it is compliant with the controls. 2. (Ex C par [17] "The amendments have achieved a bulk, scale and density that is compatible with the desired future character of the area. In this regard, the 3-storey with habitable roof form will site comfortably with 2-storey plus roof form that is permitted on neighbouring sites which have R2 Low-Density zoning. The 4-metre side setbacks and 16m rear setbacks of the upper levels also ensure a compatible visual and amenity outcome with neighbouring dwellings in the R2 zone." 1. Contention 3: Public Interest: The town planners agree (Ex C [19]) "that replacing outdated apartments with limited amenity with high-quality, low-cost accommodation is considered to represent a development in the public interest. The proposed development is consistent with the applicable planning controls……" 2. Contention 4: Boarding House Amenity and Management: The town planners agree that this contention has been resolved (Ex C par [21]-[26] as follows: 1. The 3D view from the sun diagrams (Plan DA20.11 Rev E – Ex B tab 2) confirm that the communal areas will receive the requirement amount of sunlight. 2. An additional manager's room has been provided which is in proximity to the primary communal area. 3. The amended proposal includes a compliant amount of car parking with sufficient parking to be allocated to the managers. 4. The communal areas' size has been increased by the provision of a secondary space on the upper level, which is provided in addition to the primary ground floor internal and external communal area. The internal communal areas comprise 44m2 at ground level, and 23m2 at the upper level, which comprises a total of 70m2, which satisfies the Marrickville DCP2011 cl 4.3.3.6 Control C21 (Ex 2 p339). The amended proposal which provides for 36 rooms x 50% capacity = 18 x 2m per resident = 36m2 whereas the proposal contains 70m2. DA 21/66 therefore complies regarding the communal area size. 5. "The amended design increases the size and private open space areas of the managers' rooms whilst also providing for improved outlook, thereby addressing the concerns raised in the particulars." 6. "The proposal provides for private open space in the front setback; however, such areas are recessed behind dep (sic) soil communally maintained areas whilst the private open space is within the building line." 1. Contention: Basement Ramp: The town planners agree (Ex C par [30]) that the design of the ramp has been amended to achieve compliance with the relevant Australian Standards, as confirmed by the detailed ramp sections in Plan DA04.03 Rev D (Ex B tab 1). 2. Contention 7: Landscaping and Front Fencing: The town planners agree (Ex C pars [32]-[35]) that the particulars are addressed and contention resolved - : 1. The amended proposal has significantly increased the extent of deep soil planting I the front setback 2. The area at the rear has reduced the extent of decking and increased deep soil planting. 3. Changes to the design and height of fencing. 4. The amended landscape plan allows for a significant increase of canopy trees. Figure 3: Exh C Figure 5 (Town Planners Joint Report): Landscape Plan filed with the Application Figure 4: Exh C Figure 6 (Town Planners Joint Report) Amended Landscape Plan showing the increase in landscaping and canopy trees. 1. Contention 8: Waste Management: The town planners agree (Ex C par [37]) that the amended waste management plan addressed the concerns raised in the particulars of Contention 8. A bulk waste store has been provided together with a discreetly located bin store. The bin storage area is readily accessible from the street frontage for collection. The reduced number of rooms and layout of the boarding rooms does not lend itself to a chute, noting that 12 of the 36 rooms are at ground level. 2. Contention 9: Retention of Affordable Housing. This contention has been addressed in par [56] – [57] above and is resolved. 3. The parties have agreed on the conditions of consent which are Annexure A, and they agree that the conditions are appropriate. I have perused the conditions of consent in Annexure A and consider they comply with s 4.17 of the EPA Act. 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions—generally A condition of development consent may be imposed if— (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or …… 1. I consider that DA21/66 as amended should be determined by upholding the appeal pursuant to s 39(2) of the LEC Act and s 4.16 of the EPA Act, and granting consent to DA 21/66 subject to conditions of consent in Annexure A. Orders 1. The Court notes that: 1. Inner West Council consented to the Applicant amending its plans as referenced in paragraph [1] of Annexure A, and uploaded the amended plans to the NSW Planning portal on 16 February 2022; 1. The Court Orders that: 1. The appeal is upheld. 2. Consent is granted to Development Application No. DA/2021/0066 to demolish the existing structures, and construct a four (4) storey boarding house containing basement parking and landscaping subject to Annexure A at 50-52 Warren Road Marrickville being the whole of the land in Lots 25 and 26 in Deposited Plan 1733. 3. The exhibits can be returned except for Exhibits A, B, C and 1. 4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties have agreed that the Applicant is to pay the Respondent's costs thrown away in respect of the amended plans in the sum of $7,500 within 28 days of the date of this judgment. ………………………… M Peatman Acting Commissioner of the Court (Annexure A) (354378, 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: 24 March 2022