Land and Environment Court New South Wales Medium Neutral Citation: Beeche Crawford & Crowe Pty Limited v Inner West Council [2022] NSWLEC 1550 Hearing dates: 29 September 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: See Orders at [15] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Amendment (Housing) Regulation 2021 Environmental Planning and Assessment Regulation 2000, cl 55 Inner West Local Environmental Plan 2022, cll 1.8A, 2.3 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.5 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 27, 28, 29, 30, 30A, 30AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Sch 7A, cl 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.100 Texts Cited: Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021) Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Beeche Crawford & Crowe Pty Limited (Applicant) Inner West Council (Respondent) Representation: Counsel: J Palmer (Solicitor)(Applicant) G Christmas (Solicitor)(Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Apex Lawyers (Respondent) File Number(s): 2021/291014 Publication restriction: No Judgment 1. COMMISSIONER: Beeche Crawford & Crowe Pty Limited (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of its development application DA/2021/0459 seeking consent for demolition of an existing boarding house and erection of a new boarding house on land comprising Lot 1 in Deposited Plan 900209, also known as 81 Palace St Petersham (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Proposed Development was notified in accordance with the provisions of Marrickville Development Control Plan 2011 (MDCP) between 29 June and 13 July 2021, and it was re-notified between 8 and 27 July 2021, fifteen submissions were received in response to the notifications. 4. On 7 September 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant's development application, subject to conditions. 5. The conciliation conference was convened in a manner consistent with the Land and Environment Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference being convened. 6. Two objectors made submissions during the site view and, while not objecting to the boarding house nature of the development, nevertheless identified concerns in relation to the potential amenity impacts arising from the bulk/scale and setbacks of the Proposed Development. 7. At the conciliation conference following the site view the Parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 8. 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. 9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. at the date of lodgement of development application DA/2021/0459, development on the Subject Site was subject to the provisions of Marrickville Local Environmental Plan 2011 (MLEP), and in relation to those provisions; 1. MLEP was recently repealed, and its provisions replaced by those of Inner West Local Environmental Plan 2022 (IWLEP), but the operation of MLEP with respect to the Proposed Development is saved by cl 1.8A of IWLEP; 2. the Subject Site is zoned R2 Low Density Residential under the provisions cl 2.3 of both MLEP and IWLEP, and development for the purpose of a boarding house is permitted within the R2 zoning of the Subject Site; 1. the Proposed Development is also subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), which instrument is saved with respect to the Proposed Development by cl 2 of Sch 7A of State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)), in relation to which: 1. pursuant to the provisions of cll 27 and 28 of SEPP ARH: 1. the Proposed Development which is located on land zoned R2 is subject to provisions of Div 3 of Pt 2 of SEPP ARH and requires development consent; 2. as the Subject Site is located within a 210m walking distance from Petersham Railway Station, and is accordingly within an accessible area for the purposes of cl 27 of SEPP ARH, the entirety of Div 3 of Pt 2 of SEPP ARH applies to the Proposed Development; 1. clause 29 of SEPP ARH precludes refusal of the DA on certain grounds if particular development standards are met including: 1. in relation to density or scale, if the floor space ratio (FSR) is not more than the existing maximum FSR for any form of residential development permitted on the land, and: 1. the Proposed Development has a FSR of 0.98:1 exceeding the FSR development standard of 0.6:1 under cl 4.4(2A) MLEP; and so 2. the Proposed Development must be assessed under the provisions of cl 4.4 of MLEP (see below (at [(5)(a)]); 1. in relation to building height, if the height of all proposed buildings is not more than the maximum height permitted under another environmental planning instrument; and 1. the Proposed Development has maximum height of 10.16m, exceeding the height of buildings development standard for the development on the Subject Site of 9.5m established under the provisions of cl 4.3(2) of MLEP; and 2. the Proposed Development must be assessed under the provisions of cl 4.3 of MLEP (see below (at [(5)(b)]); 1. in relation to landscaped area, if the landscaped treatment of the front setback is compatible with the streetscape, and I am satisfied that the Proposed Development has a front landscape treatment typical of the other terrace houses in the street; 2. in relation to solar access, if the communal living room in the proposed Development receives a minimum of 3 hours direct sunlight between 9am and 3pm in midwinter, and I am satisfied that the common room is provided with a skylight, which ensures a minimum 3 hours sunlight between 9am and 1pm on 21 June as confirmed in the Applicant's drawings DA-34 to DA-38; 3. in relation to private open space, if 20sqm private open space, with a minimum dimension 3m, is provided for lodgers, and 8sqm private open space with a minimum dimension 2.5m, is provided for the boarding house manager, and I am satisfied that these necessary private open spaces are provided; 4. in relation to parking, if at least 0.5 parking spaces are provided for each boarding room, and although no parking is provided on Subject Site, I am satisfied that this does not preclude approval of the development under cl 29(4) of SEPP ARH, and the absence of parking within the Proposed Development is acceptable having regard to the close proximity of the Subject Site to Petersham Railway Station; 5. in relation to room size, if each boarding room has a gross floor area (GFA) (excluding private kitchen or bathroom facilities) of 12sqm for a single room and 16sqm for a double room, and I am satisfied that the room sizes meet the GFA requirements of SEPP ARH; 1. the provisions of cl 30 of SEPP ARH set development standards which must be complied with, and in relation to this: 1. where there are five or more boarding rooms a communal living room must be provided, and I am satisfied that there is a communal living room with an area of 23sqm provided on the ground floor level of the Proposed Development; 2. no boarding room may have a GFA (excluding private kitchen or bathroom) greater than 25sqm, and I am satisfied that the largest boarding room has a GFA of 23.6sqm (Room 10); 3. no boarding room will be occupied by more than two lodgers, and I am satisfied that the Proposed Development comprises of a mix of single and double boarding rooms, with no more than two lodgers in any room; 4. adequate bathroom and kitchen facilities must be available for each lodger, and I am satisfied that eight of the boarding rooms have private kitchen and bathroom facilities, the remaining four boarding rooms have level access to a shared accessible bathroom, and kitchen facilities within the common room, in satisfaction of this requirement; 5. because the Subject Site is zoned for residential purposes, and not for commercial purposes, it is unnecessary to ensure that no part of the ground floor of the boarding house that fronts the street may be used for residential purposes; 6. at least one parking space is to be provided for a bicycle, and one space is to be provided for a motorcycle, for every 5 boarding rooms, and the Proposed Development comprises twelve boarding rooms, giving rise to a requirement for 2.4 bicycle spaces and 2.4 motorcycle spaces, and: 1. bicycle parking is provided in a bike storage room adjacent the caretaker dwelling that is able to accommodate at least 3 bicycles; and 2. no motorcycle parking; but 1. the Applicant has provided a written request pursuant to cl 4.6 of MLEP which has been prepared by Chapman Planning Pty Ltd, dated 5 August 2022 seeking relief from the motorcycle parking requirements of cl 30(h) of SEPP ARH, and in relation to this I am satisfied that the Applicant's written request should be upheld because it has demonstrated that: 1. as required under cl 4.6(3)(a) of MLEP, compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the development achieves the aims of SEPP ARH notwithstanding non-compliance with the standard for the reasons provided in the Applicant's written request, which I adopt; 2. as required under cl 4.6(3)(b), because the provision of on-site motorcycle parking would result in adverse streetscape impacts, including in relation to the heritage conservation area within which the Subject Site is located, and because the Proposed Development does not generate a net increase in parking demand beyond that of the existing boarding house, and given the site's location in close proximity to a railway station and various services, I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the development standard; and 3. as required under cl 4.6(4), approval of Proposed Development would be in the public interest because it is consistent with the aims of SEPP ARH (see above at [(i)]) and the objectives for development in the R2 zone including in relation to providing for the housing needs of the community within a low density residential environment; 1. the provisions of cl 30AA of SEPP ARH prevent the grant of consent to a boarding house on land that is zoned R2 unless satisfied that the boarding house has no more than 12 boarding rooms, and I am satisfied that the proposed development contains 12 boarding rooms; and 2. the provisions of cl 30A of SEPP ARH prevent the grant of consent to the Proposed Development unless the consent authority has taken into consideration whether the design of the development is compatible with the character of the local area, and I am satisfied that: 1. the built form of the development at the rear of the Subject Site is acceptable in context with the pattern of development of adjoining properties, including through the inclusions of a break at first floor and a recessed upper level to achieve a built form compatible with rear roof forms of adjoining properties; 2. the Proposed Development would replace an uncharacteristic existing boarding house with a new built form that is compatible, and sympathetic, the surrounding terrace development to either side including details and finishes that are suitable to the Petersham North Heritage Conservation area as confirmed within the Parties' agreed condition of consent; and 3. the character of the Proposed Development compatible with the character of the local area; 1. in relation to the provisions of MLEP: 1. as noted above (at [(3)(a)]), the Proposed Development exceeds the FSR development standard of 0.6:1 applicable to development on the Subject Site, and pursuant to the provisions of cl 4.6 of MLEP the Applicant has provided a written request, prepared by Chapman Planning Pty Ltd, dated 16 September 2022, seeking relief from the FSR standard, and in relation to this I am satisfied that the Applicant's written request should be upheld because it has demonstrated that: 1. as required under cl 4.6(3)(a) of MLEP compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the development achieves the desired future character for the area, particularly in relation to streetscape, and minimises adverse environmental impacts on adjoining properties and the public domain, and so achieves the objectives of the standard notwithstanding the non-compliance; and 2. as required under cl 4.6(3)(b), for reasons associated with the achieving the desired character of the area through an appropriate built form, the FSR exceedance promotes the orderly and economic use and development of the Subject Site and confirms that there are sufficient environmental planning grounds to justify the contravention of the development standard; and 3. as required under cl 4.6(4), approval of Proposed Development would be in the public interest because it is consistent with the objectives of cl 4.4 of MLEP (see above at [(i)]) and the objectives for development in the R2 zone including in relation to providing for the housing needs of the community within a low density residential environment; 1. as noted above (at [(3)(b)]), the Proposed Development has maximum height of 10.16m, exceeding the height of buildings (HoB) development standard for the development on the Subject Site of 9.5m established under the provisions of cl 4.3(2) of MLEP, and pursuant to the provisions of cl 4.6 of MLEP the Applicant has provided a written request, prepared by Chapman Planning Pty Ltd, dated 5 August 2022, seeking relief from the HoB standard, and in relation to this I am satisfied that the Applicant's written request should be upheld because it has demonstrated that: 1. as required under cl 4.6(3)(a) of MLEP compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the development ensures that building height is consistent with the desired future character of an area, and that buildings and public areas continue to receive satisfactory exposure to the sky and sunlight, and so achieves the objectives of the standard notwithstanding the non-compliance; and 2. as required under cl 4.6(3)(b), for reasons associated with achieving the desired character of the area through an appropriate height of built form, the HoB exceedance promotes the orderly and economic use and development of the Subject Site and confirms that there are sufficient environmental planning grounds to justify the contravention of the development standard; and 3. as required under cl 4.6(4), approval of Proposed Development would be in the public interest because it is consistent with the objectives of cl 4.3 of MLEP (see above at [(a)(i)]) and the objectives for development in the R2 zone including in relation to providing for the housing needs of the community within a low density residential environment; 1. in relation to the provisions of cl 5.10 of the MLEP concerning heritage conservation, the Subject Site is located within the Petersham North Heritage Conservation Area, and the effect of the Proposed Development on the heritage significance of the conservation area has been considered, and the recommendations of the Parties' heritage experts have been incorporated into the Applicant's amended plans and the Parties' agreed conditions of consent; 2. in relation to the provisions of cl 6.1 of the MLEP in relation to acid sulphate soils: the Subject Site is identified as containing class 5 acid sulphate soils, but it is not located within 50m of class 1-4 land and does not involve any excavation, and as a consequence, the Proposed Development will not lower the water table, and an acid sulphate soils management plan is not required; 3. in relation to the provisions of cl 6.2 of the MLEP in relation to earthworks, the clause does not apply to the proposed Development as there is no excavation or other earthworks proposed save for potential minor ancillary earthworks for footings; 4. in relation to the provisions of cl 6.3 of the MLEP in relation to flood planning the Subject Site is not identified on the Respondent's Flood Planning Map, and accordingly the clause does not apply; 5. in relation to the provisions of cl 6.5 of the MLEP in relation to development in areas subject to aircraft noise, the clause applies to the Proposed Development, and: 1. the Applicant's development application is accompanied by an Acoustic Report prepared by Koikas Associates, dated 26 September 2022, which confirms that the Proposed Development can achieve the relevant indoor design sound levels; and 2. appropriate measures and construction methods to ensure compliance with the provisions of cl 6.5 are the subject of the Parties' agreed conditions of consent which require compliance with the Applicant's acoustic report recommendations; 1. the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) apply to the development and, on the basis of the Applicant's acoustic report prepared by Koikos Acoustics, I am satisfied that the provisions of cl 2.100 of SEPP T&I are met and the relevant noise LAeq levels required under cl 2.100(3) SEPP T&I will not be exceeded; 2. the provisions of cl 4.6 of State Environmental Planning Policy (Hazards and Resilience) 2021 apply to development on the Subject Site, and in relation to this, I am satisfied that: 1. the site has historically been used as a boarding house and for other residential purposes; 2. there is no indication or record of contamination of the site; and 3. no change of use of the Subject Site is proposed, such that the land is suitable for its continued use for residential purposes as a boarding house; 1. notwithstanding the provisions of the Environmental Planning and Assessment Amendment (Housing) Regulation 2021, which amended the definition of a BASIX affected development under the EP&A Regulation to exclude boarding house developments with more than 12 residents, the Applicant has provided BASIX certificate number 1320749M_02, should it be required, in satisfaction of the requirements of State Environmental Planning Policy (Building Sustainability Index:BASIX) 2004; 2. the relevant provisions of MDCP have been considered in relation to the Proposed Development, and I am satisfied that there is no provision of MDCP that would form a basis for refusal of the Proposed Development, including those relating to the mitigation of potential amenity impacts on neighbouring properties; 3. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submissions of the objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act. 1. Having considered the advice of the Parties, provided above at [9], I agree that: 1. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied; 3. approval of the Proposed Development is in the public interest. 1. Further, I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 3. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 4. The Court notes that: 1. Inner West Council, as the relevant consent authority pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, has agreed to the Applicant amending development application DA 2021/0459 and to rely on the following plans and documents (the amended material), which are also set out in condition 1 of the Parties' agreed Conditions of Consent at Annexure A to this judgment: 1. architectural plans DA-01-DA-16 Issue G dated 26 September 2022 and prepared by ZTA Group; 2. acoustical report 4367 V4 dated 26 September and prepared by Koikas Acoustics Pty Ltd; 3. a Stormwater Concept Plan Revision C dated 27 September 2022 and prepared by Allied Group; and 4. a Boarding House Plan of Management dated 26 September 2022 and prepared by Chapman Planning; 1. the Applicant has lodged the amended material on the NSW Planning Portal on 28 September 2022; and 2. the Applicant has filed the amended material with the Court on 28 September 2022; Orders 1. The Court orders that: 1. the Applicant is to pay, within 28 days of the date of judgment, the Respondent's costs thrown away as a result of dealing with the amendments to the development application in the quantum of $15,000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979; 2. the Applicant's written requests, prepared pursuant to cl 4.6 of Marrickville Local Environmental Plan 2011, seeking to vary development standards, are upheld as follows: 1. the request prepared by Chapman Planning and dated 5 August 2021 in relation to the height of building development standard in cl 4.3 of Marrickville Local Environmental Plan 2011; 2. the request prepared by Chapman Planning and dated 16 September 2022 in relation to the floor space ratio development standard in cl 4.4 of Marrickville Local Environmental Plan 2011; and 3. the request prepared by Chapman Planning and dated 5 August 2022 in relation to the motorcycle parking spaces development standard in cl 30 of State Environmental Planning Policy (Affordable Rental Housing) 2009; 1. the appeal is upheld; 2. Development Application DA 2021/0459 for demolition of an existing boarding house and erection of a new boarding house at 81 Palace St Petersham is determined by the grant of consent, subject to the conditions at Annexure 'A'. ………………………….. M Chilcott Commissioner of the Court 291014.21 Annexure A (324395, 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: 11 October 2022