Land and Environment Court New South Wales Medium Neutral Citation: Park Hermitage Pty Ltd v Inner West Council [2023] NSWLEC 1174 Hearing dates: Conciliation conference on 13 February, 1 March and 28 March 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) Leave is granted to the applicant to amend Development Application DA/2022/0308, to rely on the amended plans and documents specified in Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent's costs thrown away in the sum of $3,500 within 28 days of these orders being made. (3) The applicant's written request pursuant to Marrickville Local Environmental Plan (MLEP) clause 4.6 seeking a variation to the development standard for height of buildings set out in MLEP clause 4.3 is upheld. (4) The applicant's written request pursuant to MLEP clause 4.6 seeking a variation to the development standard for floor space ratio set out in MLEP clause 4.4 is upheld. (5) The appeal is upheld. (6) Development consent is granted to development application number DA/2022/0308, for demolition of an existing residential flat building (referred to as Building A) and construction of a new residential flat building at Lot 1 in Deposited Plan 1270075, also known as 23 Croydon Street, Petersham, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 64 Environmental Planning and Assessment Regulation 2021, s 38 Inner West Local Environmental Plan 2022, cl 1.8A Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011 cll 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, Sch 5 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development Texts Cited: Standards Australia, Australian Standard AS 2021:2015 (2015) Category: Principal judgment Parties: Park Hermitage Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/277561 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings result from the deemed refusal by Inner West Council of development application DA/2022/0308, which seeks consent for the demolition of an existing residential flat building on site and the construction of a new residential flat building at 23 Croydon Street, Petersham, Lot 1 in DP 1270075 (the site). These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The proposed development seeks consent to demolish an existing residential flat building (referred to as Building A) and construct a new residential flat building. Building A forms part of an overall development of the site that includes two buildings, A and B, which were approved under a previous consent, DA2015/0665 (previous consent). The development application also seeks that a condition of consent be imposed to modify the previous consent applying to the site pursuant to s 4.17(1)(b) of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 February 2023, and subsequently on 1 March and 28 March 2023. I presided over the conciliation conference. 4. After the conciliation conference, the parties reached 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 development consent to the development application subject to conditions. 5. 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 one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. From this I note the following: 1. The development application was made with the written consent of the landowner. 2. The development application was appropriately notified by the Council. No submissions were received. 3. The development application is accompanied by a BASIX certificate that applies to the proposed development, as required pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. Based on the parties' submission and a statement provided at page 10 of the Statement of Environmental Effects (SEE), I am satisfied that the site has been historically used for residential purposes since its original subdivision, and the likelihood of contamination is highly unlikely. It is considered therefore that further assessment is unnecessary as the site is suitable for the intended development as required by s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021. 5. Pursuant to the requirements of State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65), based on the parties' submissions, the accompanying Design Verification Statement, and SEPP 65 Apartment Design Guide – Compliance Table I am satisfied that firstly, the development application was not subject to review from any design review panel and secondly, that the design quality of the development has been evaluated in accordance with the design quality principles and the Apartment Design Guide and is acceptable. 6. The Inner West Local Environmental Plan 2022 (ILEP) commenced on 12 August 2022. Under the savings provisions of this instrument in cl 1.8A, this application must be determined as if the ILEP had not commenced, and therefore the Marrickville Local Environmental Plan 2011 (MLEP) applies. 7. Pursuant to the MLEP, the site is zoned R1 General Residential, within which the proposed development is permitted with consent. Based on the parties' submissions, the amended drawings and the information in the SEE, I accept that the proposed development is consistent with the objectives of the zone. 8. Demolition requires development consent pursuant to MLEP cl 2.7 and is requested as part of this application. 9. The proposed development exceeds the development standard set for height under MLEP cl 4.3. The non-compliance is confined to the pitched roof form and equates to a variation of 2.73m to the primary pitch and 0.16 to a small section of roof to the rear of the building. MLEP cl 4.6(3) requires a written request which demonstrates that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the applicant has submitted a written request prepared by Planning Ingenuity dated 24 March 2023. Pursuant to cl 4.6 I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the Height of Buildings development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not create any additional significant adverse impacts. 2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the height control is the result of a design response to the context of the locality, resulting in a building with a pitched roof that is informed by, and consistent with the existing building to be demolished, and the context and scale of buildings within the Petersham North Heritage Conservation Area (HCA). Further, the non-compliance will not have any adverse visual impact to the public domain or neighbouring properties. The contravention is therefore justified by the appropriate design response to the context of the locality and the HCA, and the lack of resulting adverse impacts. 3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. The proposed development also exceeds the development standard set for floor space ratio (FSR) under MLEP cl 4.4. The relevant map of the MLEP (sheet FSR_003) identifies the site as having a permitted FSR of 0.6:1. The proposed development has an FSR of 1:1 (1933.7m2), which is a non-compliance of 796.1m2. It is important to note that the previous consent was approved with a non-compliant FSR of 1:1 (1898.5m2), and that this proposed development represents a minor increase to the extent of variation on the subject site beyond that approved under DA2015/0665. 2. MLEP cl 4.6(3) requires a written request which demonstrates that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the applicant has submitted a second written request prepared by Planning Ingenuity dated 17 March 2023. Pursuant to cl 4.6 I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the FSR development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not create any additional significant adverse impacts. 2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the FSR control is the result of an intention to erect a new residential flat building in place of the existing (due to its failing structural integrity). The new building does not alter the perceived visual impact of the development nor result in any substantial increase to amenity impacts and will not be perceptible when viewed from the public domain or surrounding properties. The development remains consistent with the character of the streetscape despite the non-compliance, and the additional FSR does not result in any adverse impacts to the character of the locality. The contravention is therefore justified by the minimal environmental impacts, appropriateness to the characteristics of this particular site, and facilitation of the orderly and economic development of the site. 3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. Pursuant to cl 64 of the Environmental Planning and Assessment Regulation 2000 (EPA Regs), concurrence of the Secretary of the Department of Planning and the Environment for the variations to both the height of buildings and FSR development standards is assumed, noting that the parties submit and I accept that the contraventions of these development standards do not raise any matters of significance for State or regional environmental planning. 2. Although not listed as a heritage item, the site is located within a HCA and is within the vicinity of a number of heritage items listed on Sch 5 of the MLEP. The Heritage Impact Statement concludes that the proposed development will not have an adverse impact on the established heritage significance and character of the conservation area, nor on the views to and from the heritage items in the vicinity. Further, the parties submit and I accept that the proposed development has been amended in response to the heritage contentions raised by the respondent. From this I am satisfied that the requirements of MLEP cl 5.10 are met with the proposed development. 3. Pursuant to MLEP cl 6.1, the site is not identified as any class of land affected by acid sulfate soils, and an acid sulfate soils management plan is therefore not required. 4. The development does not propose any earthworks that engage MLEP cl 6.2. 5. Pursuant to MLEP cl 6.3, the site is neither within a flood planning area nor at, or below, the flood planning level and therefore the provisions of this clause do not apply. 6. The site is not identified as 'Biodiversity' on the Natural Resource – Biodiversity map and the provisions of MLEP cl 6.4 are not engaged. 7. The site is located within the 20-25 Australian Noise Exposure Forecast (2033) Contour. Pursuant to MLEP cl 6.5, the parties submit, and I accept that the development will not increase the number of dwellings or people affected by aircraft noise, and subject to the relevant condition of consent will meet the required indoor sound design levels as required by Australian Standard AS 2021:2015. 1. For these reasons 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 one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. Orders 1. The Court notes: 1. That the respondent as the relevant consent authority has approved under section 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant's amending Development application DA/2022/0308 in accordance with the plans and documents listed below: Plan Number and Revision Plan description Dated Architectural plans prepared by Barry Rush & Associates Pty Ltd A00B, Issue B Location Plan Option A 02.03.2023 A04C, Issue C Ground Floor Plan Option A 09.03.2023 A05C, Issue C First Floor Plan Option A 09.03.2023 A06B, Issue B Second Floor Plan Option A 02.03.2023 A07B, Issue B Roof & Unit 3 Attic Plan Option A 02.03.2023 A08C, Issue C Elevation N_E Option A 09.03.2023 A09C, Issue C Elevation S_W_Section B Option A 09.03.2023 A13 Demolition Plan 17.02.2023 A14 Demolition Building A Floor Plans 17.02.2023 A15 Approved Demolition Site Plan 21.02.2023 A16 Approved Demolition Building A Floor Plans 21.02.2023 A17 Approved Demolition Building A Elevations 21.02.2023 Landscape plans prepared by Paul Scrivener Landscape Sheet 1, Issue D Detail Plan – Upper Ground Floor 02.03.2023 Sheet 2, Issue D Ground Floor Plan 02.03.2023 Sheet 3, Issue D Lower Ground Floor Plan 02.03.2023 Sheet 4, Issue D Planting Plan 02.03.2023 Sheet 5, Issue D Soil Areas Plan 02.03.2023 Sheet 6, Issue D Details & Notes 02.03.2023 Documents Clause 4.6 – Height of Buildings prepared by Planning Ingenuity, dated 24 March 2023 Clause 4.6 – Floor Space Ratio prepared by Planning Ingenuity, dated 17 March 2023 BASIX Certificate No. 1291038M_02 Prepared by Lin & Associates Pty Ltd 27.03.2023 1. The amended plans and documents referred to in paragraph 3(a) above were filed with the Court on 28 March 2023. 1. The Court orders: 1. Leave is granted to the applicant to amend Development Application DA/2022/0308, to rely on the amended plans and documents specified in Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent's costs thrown away in the sum of $3,500 within 28 days of these orders being made. 3. The applicant's written request pursuant to Marrickville Local Environmental Plan (MLEP) clause 4.6 seeking a variation to the development standard for height of buildings set out in MLEP clause 4.3 is upheld. 4. The applicant's written request pursuant to MLEP clause 4.6 seeking a variation to the development standard for floor space ratio set out in MLEP clause 4.4 is upheld. 5. The appeal is upheld. 6. Development consent is granted to development application number DA/2022/0308, for demolition of an existing residential flat building (referred to as Building A) and construction of a new residential flat building at Lot 1 in Deposited Plan 1270075, also known as 23 Croydon Street, Petersham, subject to the conditions of consent at Annexure A. E Washington Acting Commissioner of the Court Annexure A ********** 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: 14 April 2023