Land and Environment Court New South Wales Medium Neutral Citation: TR Investment (2021) Pty Ltd v Inner West Council [2022] NSWLEC 1234 Hearing dates: Conciliation conference on 4 March 2022, final submission 29 April 2022 Date of orders: 04 May 2022 Decision date: 04 May 2022 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [26] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement of the parties – orders Legislation Cited: Ashfield Local Environmental Plan 2013, cll 4.3, 4.6, 5.1, 6.1 Environmental Planning and Assessment Act 1979, s 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30A State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.48, 2.118, 2.119, 2.121 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Ashfield Development Control Plan 2011 Category: Principal judgment Parties: TR Investment (2021) Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/324377 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA/2021/0928 (DA) by Inner West Council (Council). The DA seeks consent for construction of a mixed-use development containing retail uses and a boarding house comprising 45 double boarding rooms and two levels of basement parking at Lot 5 in DP464 known as 378 Liverpool Road, Ashfield (site). 2. The Court arranged a conciliation conference between the parties, under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 4 March 2022. I presided over the conciliation conference. 3. After more time was allowed, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined such matters of relevance in these proceedings through a "joint jurisdictional note" received initially on 13 April 2022 and updated on 29 April 2022, which explained how such matters have been or could be satisfied. Below I give consideration to the jurisdictional issues, mindful of this statement. State Environmental Planning Policy (Resilience and Hazards) 2021 1. In relation to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021, I accept the advice of the parties that the historical use of the site has been for residential purposes and that there is sufficient information for the consent authority to have considered the potential for contamination and to have reached the conclusion that it is not contaminated. I further note that proposed Condition 35 requires that, if any new information is revealed during demolition, remediation or construction works that have the potential to alter previous conclusions about site contamination, the applicant is to immediately notify the Council and the Certifying Authority. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. In accordance with requirements of s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure), the development application was notified to Ausgrid on 27 October 2021. I accept the advice in the jurisdictional statement that recommendations of Ausgrid have been included in the conditions of consent, satisfying requirements of s 2.48. 2. The site is located with a frontage to a classified road (Liverpool Road) and as such, is subject to s 2.118. The proposed development provides for vehicle access from Milton Lane (rather than Liverpool Road), which is consistent with the provisions of s 2.118(a). The updated Traffic Impact Assessment report prepared by PDC Consultants dated 25 March 2022 addresses the traffic and parking impacts of the development and demonstrates that the development will not adversely impact the safety and efficiency of Liverpool Road or the surrounding road network. I can also note that this proposal would not bring emission of smoke or dust to effect Liverpool Road. The requirements of s 2.118(b) are satisfied. The requirements of s 2.118(c) are also satisfied for the reasons indicated immediately below. 3. Section 2.119 applies to the residential component of the subject development. The Acoustic Report prepared by Acoustic Consulting Engineers dated 22 March 2022, assesses the development in regard to the requirements of s 2.119 and demonstrates that, subject to recommendations, appropriate measures will be taken to ensure that the nominated LAeq levels are not exceeded for bedrooms and other nominated rooms, that the boarding house rooms will not be unduly impacted by road noise or vibration. Based on this advice, I am satisfied in regard to this clause. 4. Section 2.121 applies to the development. I am advised by the parties that the development application was notified to Transport for NSW (TfNSW) in accordance with this provision and TfNSW requirements are included in the conditions of consent. Based on this advice, I am satisfied in regard to this clause. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the proposal. Below jurisdictionally relevant provisions of SEPP ARH are considered: * In regard to cl 30(1) and standards for boarding houses, I accept the advice of the parties and am satisfied that a communal living space has been provided, no boarding room exceeds 25m2 gross floor area, no boarding room is proposed to be occupied by more than two lodgers, each room will have a private kitchen and bathroom facilities, a boarding room has been provided for an onsite manager, the ground floor will be used for commercial floor space and at least one bicycle and motorcycle parking space will be provided for every 5 rooms. * In regard to cl 30A, I have taken into consideration whether the design of the development is compatible with the character of the local area. Ashfield Local Environmental Plan 2013 (ALEP) 1. Below jurisdictionally relevant matters under ALEP are considered: * The site is zoned B4 Mixed Use. I have considered the zone objectives and note that boarding houses are permissible with consent in the zone. * The site is subject to a maximum building height of 23m pursuant to cl 4.3. While the development does not breach this height, a particular provision at cl 4.3(2A) is contravened and is the subject of a written request under cl 4.6, which I consider below. * The site is subject to a maximum floor space ratio (FSR) of 2.5:1 including the relevant bonus 0.5:1 FSR under SEPP ARH. The FSR of the proposed development is 2.35:1. * Pertinent to cl 5.1, a portion of the subject parcel of land along Liverpool Road has been reserved for road widening and has been effectively excluded from the proposal, including from site area calculations. * I am mindful of a geotechnical report prepared by Cardno dated 30 August 2021, and have considered the matters requiring consideration at cl 6.1(3) relating to earthworks. I note the reference to the Cardno report in the proposed conditions and a number of other proposed consent conditions aimed at addressing earthworks concerns. Height of buildings standard contravention 1. Clause 4.3(2A) of ALEP provides: If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. 1. The development application has a maximum height of 23m to the top of the lift overrun. However, the proposed development includes area that forms part of the gross floor area (GFA) of the building that are between 20m and 23m in height. This area is limited to the accessible rooftop communal bathroom. 2. The applicant has lodged a written request pursuant to cl 4.6(3) of ALEP, prepared by Planning Ingenuity dated 31 March 2022 (written request), seeking approval notwithstanding the contravention. The parties agree that the written request is well founded and that the facultative powers of cl 4.6 of ALEP should be deployed in this case. I have reviewed the written request and I am also satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions, as explained below. 3. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of ALEP). It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request adopts the first "Wehbe way", successfully showing how, otherwise, the development, achieves the objectives of the development standard. It does this by working through each of the objectives of cl 4.3 of the ALEP and demonstrating: 1. how the built form responds particularly to its context and the applicable controls and is therefore of high quality, 2. how the rooftop elements are setback from levels below to maintain satisfactory sky exposure and daylight, 3. how the built form height forms part of the overall height transition provided under ALEP, and 4. how the development has been designed to provide satisfactory solar access for neighbours and public areas. 1. The written request also demonstrates there are sufficient environmental planning grounds to justify contravening the development standard. It does this by noting the scale of the breach (involving some 6m2 or less than 1% of the site area) and the benefits provided by the communal bathroom in this location. 2. For a contravention to be allowed there is also a requirement for the Court to be directly satisfied that the proposed development is in the public interest because it is consistent with the objectives of the contravened development standard and, in this case, the applicable B2 Local Centre zone (cl 4.6(4)(a)(ii)). I am so satisfied. In regard to the objectives of the contravened development standard, my reasoning aligns with that of the written request. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the B4 zone, because: 1. the proposal directly provides for a mixture of compatible uses, 2. the proposed uses integrate with other nearby development all with good access to transport infrastructure and services so as to maximise public transport patronage and encourage walking and cycling, 3. the scale of the development can enhance the viability, vitality and amenity of Ashfield town centre and 4. in this instance the scale is sufficient to not require consolidation, nor is this required under the zone objectives. 1. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of ALEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention. I find nothing of significance arises in regard to those matters. 2. The states of satisfaction required by cl 4.6 of ALEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of this particular element of the building height standard. Other provisions of s 4.15(1) of the EPA Act 1. The parties have provided me with advice in regard to the provisions of Inner West Development Control Plan 2011, in particular, through the statement of environmental effects included in the Class 1 Application. I have considered this advice and in turn believe the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met. 2. The parties advise the proposal was notified in accordance with requirements and objecting submissions were received in regard to the proposal. I note I also heard from two objectors on site, and that further written objecting submissions were received following informal notification of amending plans. The parties have provided me with a summary note which outlines the objections and explains how the concerns have been addressed (Note: entitled "Response to Concerns of Objectors" received 29/4/2022). I have regard to these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act. 3. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act. Conclusion 1. Based on the material outlined above, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I note that I have had no direct regard to the merits of the application in coming to this position. 2. In coming to this position, certain amendments were made to the application originally filed. In that regard, the Court notes the following advice from the parties: * Inner West Council, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application Number DA/2020/0928 filed with the Court on 15 November 2021 with the plans listed in Condition 1 of the Conditions of Consent provided as Annexure 'A' to this judgement. * The applicant uploaded the amended development application on the NSW planning portal on 4 April 2022, reference PAN-145862. * The applicant filed the amended application with the Court by 7 April 2022. Orders 1. The orders of the Court are: 1. The request pursuant to clause 4.6 of Ashfield Local Environmental Plan 2013 to vary the development standard for height of buildings contained in clause 4.3(2A) thereof, as prepared by Planning Ingenuity dated 31 March 2022, is upheld. 2. The appeal is upheld. 3. Development Application No. DA/2021/0928 for construction of a mixed-use development containing retail and a boarding house with 45 double rooms, with two (2) levels of basement parking for 28 cars on land legally comprising of the allotment described as Lot 5 DP464, known as 378 Liverpool Road, Ashfield is approved subject to the conditions set out in Annexure "A" to this judgment. 4. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Application in the agreed amount of $15,000 within 28 days of the date of these orders. ……………………… Peter Walsh Commissioner of the Court Annexure A.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: 04 May 2022