Land and Environment Court New South Wales Medium Neutral Citation: Margossian v Inner West Council [2023] NSWLEC 1187 Hearing dates: Conciliation conference on 8 February 2023 Date of orders: 24 April 2023 Decision date: 24 April 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application No.2022/0106 and rely upon the Amended Plans and documents referred to in condition 1 to Annexure "A". (2) The Applicant's Class 1 appeal is upheld. (3) The Applicant's clause 4.6 written application regarding clause 4.4 of the Leichhardt Local Environmental Plan 2013 is upheld. (4) Development Consent is granted to Development Application DA/2022/0106 to demolish the existing dwelling and outbuilding, tree removal, and undertake construction of a new three level residential dwelling on site with associated site and landscaping works at Lot 1 DP1268060 of 79 Rowntree Street, Birchgrove, subject to the conditions contained at Annexure "A". Catchwords: DEVELOPMENT APPLICATION –– reduced impact due to amended plans – variation to floor space ratio development standard – conciliation conference –agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.7 Environmental Planning and Assessment Regulation 2021, cl 37 Land and Environment Court Act 1979, ss 34, 34AA Leichardt Local Environment Plan 2013, cll 4.3A, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4 Inner West Local Environmental Plan, cl 1.8A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Leichardt Development Control Plan 2013 Planning Circular PS 20-002 Variations to Development Standards, May 2020 Category: Principal judgment Parties: Ara Margossian (Applicant) Inner West Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) B Dyer (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Maddocks (Respondent) File Number(s): 2022/269954 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Inner West Council (Council) of Development Application No. 2022/0106 (the DA). In the first instance, these proceedings were an appeal against the deemed refusal of the DA. However, the Inner West Local Planning Panel (IWLPP) subsequently granted development consent to the DA on 11 October 2022, subject to conditions. The subject proceedings are now an appeal against the conditions imposed by the IWLPP. 2. The DA sought development consent to demolish an existing dwelling and the construction of a new two and three storey and associated landscaping (Proposed Development) at Lot 1 of DP 1268060 and known as 79 Rowntree Street, Birchgrove (Site). 3. The owner of the Site is Aramazd Pty Ltd trading as Aramazd Family Trust (Trust). However, the DA was submitted by Ara Margossian as Chairperson of the Trust. Owner's consent was provided at the time the DA was lodged (see Owners' Consent included in the Class 1 Application). 4. The original DA was notified for 14 days between 1 March and 15 March 2022 to surrounding properties. Three (3) submissions were received which raised issues such as privacy impacts including a reduction in winter sunlight and other amenity impacts, bulk and scale, not in keeping with the character and style of the surrounding properties, as well as the proximity of the building to the side wall of 81 Rowntree Street that would cause concerns regarding maintenance. Conditions proposed to be amended 1. The privacy concerns and access for maintenance raised in submissions were addressed by the IWLPP through various conditions that it imposed in the DA consent, including the design changes required in condition 2 (the condition that is the subject of these proceedings). 2. Condition 2 states: "2. Design Change Prior to the issue of a Construction Certificate, the Certifying Authority must be provided with amended plans demonstrating the following: a. The first floor level is to be setback 2.3m so as to result in a 8.3m setback from the rear boundary. b. The north eastern wall of the building is to be setback 600mm from the common side boundary where it adjoins the weatherboard portion of the dwelling at 81 Rowntree Street, Birchgrove. The internal width of the car space shall be maintained at 3 metres with the rest of the dwelling altered internally to accommodate this change. (Amended IWLPP - DA/2022/0106 - 11/10/2022) c. The depth of the ground floor rear balcony is to be reduced from 1.5m to 1.2m d. The upper level master bedroom balustrade is to be the limited to the width of the double door only and to be non trafficable (Adopted IWLPP - DA/2022/0106 - 11/10/2022) 2A. That the dwelling is to be used as a single occupancy. (Adopted IWLPP - DA/2022/0106 - 11/10/2022)" 1. The matters raised in condition 2a to 2d (inclusive) have been considered by the Respondent, and the parties agree that these have been satisfactorily addressed in the Amended Plans noting that: 1. Condition 2a – this condition was imposed to achieve a rear setback to the proposed upper level that was more compatible with rear setbacks of residential development to the north-east of the subject site. This is a consideration when viewing the Proposed Development from the rear yards of neighbouring properties. This aspect of the Proposed Development is not visible from the street or any public place. There is no apparent nexus between this condition and the amenity of neighbouring properties. 2. The siting of the upper level is consistent with a number of the Leichardt Development Control Plan 2013 (DCP) objectives including solar access, privacy and view sharing. Adequate building separation is maintained and there are no inappropriate impacts on visual or acoustic privacy, overshadowing, view sharing or visual intrusion. 3. In terms of compatibility with desired future character, three recent court matters have considered the term 'desired future character' and how such terms should be applied. The character of the area is established and is not foreshadowed by the planning controls to change. 4. Condition 2b – this condition was imposed to address the concerns raised by the owners of 81 Rowntree Street regarding the north-eastern side setback to the proposed garage. The form of residential development and rear setback pattern to the north-east of the subject site is mixed. There is no consistent rear setback. The development across the various sites is often stepped over several levels/storeys. It is difficult to gain a specific and accurate measurement of the upper level that is comparable to the subject development, for example, there is no survey information that provides this information. Being an area of mixed character, the proposed first floor rear setback will not be incompatible with the local development character and is therefore satisfactory. 5. The Applicant's revised clause 4.6 written request to vary the Floor Space Ratio (FSR) standard in the Leichardt Local Environment Plan 2013(LLEP), provides further reasoning regarding the position of the proposed upper level and the gross floor area that is proposed in the Amended Plans. 6. The revised plans have increased the north-eastern side setback to the proposed garage from 499mm to 600mm. When combining the revised setbacks proposed with the neighbour's side setback a space of approximately 730 mm to 840mm is maintained adjacent to the proposed garage. This will allow for a person to gain access to this space for general maintenance purposes. 7. The DCP does not set a standard with regards to the minimum setback to allow for maintenance, it simply states under C3.2 – 'Site Layout and Building Design' at C8(e) "reasonable access is retained for necessary maintenance of adjoining properties". 8. The increased setback to the garage is a significant improvement for the neighbouring property at 81 Rowntree Street. The increased setback to the garage is assessed as adequate in addressing the provision of the DCP and reasonable space for maintenance will be provided. 9. Condition 2c – in the Amended Plans, the width of the ground floor rear balcony has been reduced from 1.5m to 1.2m in accordance with Condition 2c. Condition 2c is therefore no longer required. 10. Condition 2d - in response to Condition 2d, the Applicant explained that reducing the width of the upper-level master bedroom balustrade is impractical and unsafe for structural reasons. Furthermore, it would not have a planning benefit. This position is agreed between the parties. Condition 2d should therefore be deleted. 11. Condition 2A – that the dwelling be used as a single occupancy is to be retained and is provided for in Annexure A of the s 34 Agreement as condition 29. The Appeal 1. On 9 September 2022, the Applicant commenced proceedings in Class 1 of the Land and Environment Court's jurisdiction. The Applicant filed a Statement of Facts and Contentions in accordance with the Practice Note Class 1 Residential Development Appeals by 16 November 2022. The parties' experts then discussed the issues on 29 November 2022, with the main issues in the matter on FSR, insufficient side and rear setbacks (upper level) and amenity impacts including privacy for adjacent properties. 2. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act), at which I presided, on 8 February 2023, which commenced in Court. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties, which included the Applicant submitting Amended Plans. The parties' experts have considered the Amended Plans and are satisfied that they address all of the Respondent's concerns. The signed agreement was filed on 7 February 2023 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. The agreement involves the Court approving the application. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: Application of the Inner West Local Environmental Plan 2022 (IWLEP) 1. Although the IWLEP commenced on 12 August 2022, LLEP remains the relevant environmental planning instrument for the Land because the DA was made before the IWLEP commenced, and DAs in those circumstances are to be determined as if the IWLEP had not commenced in line with cl 1.8A of the IWLEP. Application of the LLEP 1. The parties' experts have considered the Amended Plans and are satisfied that they are consistent with the aims of the LLEP. 2. The Site has a total area of 230.4m2 and is zoned R1 – General Residential. A dwelling is permissible with consent under the LLEP in that zone and I am satisfied that the proposal is consistent with the objectives of this zone which are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. Clause 4.3A of LLEP requires that development on a lot of equal to or less than 235m2 have a landscaped area of at least 15% and a maximum site coverage of 60%. The landscape area in the amended plans is now 30.47%, and the proposed site coverage is 57%. I am satisfied from the evidence that both the landscaped area and site coverage requirements of the LLEP are met. 2. Clause 4.4(2) of LLEP establishes the maximum FSR for development and refers to the maximum FSR noted within the 'Floor Space Ratio Map'. However, subclause 2B(b) states that: "(b) on land shown edged red or green on the Floor Space Ratio Map is not to exceed— … (ii) in the case of development on a lot with an area of 150 square metres or more but less than 300 square metres—0.9:1, or…" 1. As the subject site is on land shown edged green, the relevant FSR for this locality is 0.9:1 (with a maximum gross floor area of 207.27m2) and it is considered to be a 'development standard' for the purposes of the EPA Act. The development is proposing a gross floor area of 226.329m2 at a floor space ratio of 0.98:1 which is a 9.2% increase over the maximum allowable FSR, an exceedance the Applicant must justify. 2. To justify the contravention of the FSR development standard, the Applicant has submitted a revised written request pursuant to cl 4.6 of the LLEP (written request). 3. The objectives of the FSR development standard are: (a) to ensure that residential accommodation— (i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and (ii) provides a suitable balance between landscaped areas and the built form, and (iii) minimises the impact of the bulk and scale of buildings, (b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale. 1. I am satisfied that despite the FSR exceedance of 9.2% above the development standard in the LLEP, the Proposed Development is justified on the basis that the Site is small at only 230m2 with a narrow lot width of 10.3m which means strict compliance is unreasonable. 2. The parties agree and I am satisfied that the written request adequately addresses the matters set out in cl 4.6(3)(a) and (b) thereby satisfying cl 4.6(4)(a)(i) of the LLEP. The granting of consent to the Proposed Development even with an FSR in excess of the standard will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, satisfying cl 4.6(4)(a)(ii). 3. The concurrence of the Planning Secretary can also be assumed in accordance with Planning Circular PS 20-002 Variations to Development Standards (5 May 2020), thereby satisfying cl 4.6(4)(b) of the LLEP. 4. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), an applicant need only establish one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]). 5. I am satisfied that the standard is not relevant in the circumstances of this case for the grounds set out in the Request. 6. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the FSR standard as required by cl 4.6(3)(b) of the LLEP. 7. I also consider the proposed development to be consistent with the objectives of the relevant standard, and I am satisfied that the objectives of the R1 zone, are also achieved. Accordingly, I am satisfied that the proposed development is in the public interest pursuant to cl 4.6(4)(a)(ii) of the LLEP and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act. 8. For the reasons stated above, I find the Request to vary the FSR standard should be upheld. 9. The land is a contributory item to the Town of Waterview Heritage Conservation Area (HCA). Clause 5.10 of the LLEP requires a consent authority to consider the effect of the Proposed Development on the heritage significance of the area concerned. A heritage impact statement by Andrew Starr and Associates Heritage Consultants was submitted with the DA. 10. The parties have considered the effect of the Proposed Development on the heritage significance of the HCA and are satisfied that there will not be any unaccepted effects as a result of the Proposed Development. In addition, the design changes in condition 2, the subject of this appeal, do not raise any heritage issues that need to be managed or mitigated. I am therefore satisfied that cl 5.10 of LLEP has been adequately addressed. 11. Clause 6.1 of the LLEP deals with acid sulphate soils (ASS) and is addressed at page 9 of the Applicant's Statement of Environmental Effects (that formed part of the Class 1 Application). The subject site is Class 5 ASS affected land, and the proposed works will not raise the water table, given the classification of the land, thus the proposal should not raise any concern in this regard. Accordingly, cl 6.1 does not apply to the works for the Proposed Development. 12. Clause 6.2 of the LLEP deals with earthworks and is addressed on page 10 of the Applicant's Statement of Environmental Effects (that formed part of the Class 1 Application). Excavation of no more than 1 metre is proposed. A geotechnical report has been prepared by EI Australia and lays out a series measures and recommendations to ensure the stability of the site and adjoining sites. On this basis, I am satisfied that cl 6.2 of the LLEP has been addressed. 13. Clause 6.4 of the LLEP deals with stormwater management and is also addressed on page 10 of the Applicant's Statement of Environmental Effects (that formed part of the Class 1 Application). A stormwater concept plan has been submitted in compliance with the LLEP and I am therefore satisfied that cl 6.4 has been addressed. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) 1. Section 4.6 of the Resilience and Hazards SEPP (formerly cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land) provides that: (1) A consent authority must not grant consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated; and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose for which the development is to be carried out; and (c) if the land requires remediation, it is satisfied that the land will be remediated before the land is used for that purpose. 1. Pursuant to section 4.6 of the Resilience and Hazards SEPP, the parties have considered whether the site is contaminated. The Statement of Environmental Effects lodged with the DA addresses this at page 7 and concludes that there is no likelihood of contamination on this site as there is no evidence of any potentially contaminating uses occurring. I am therefore satisfied that the requirements of the Resilience and Hazards SEPP has been satisfied and the site will continue to be suitable for its proposed use for residential purposes. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) 1. An amended BASIX Certificate No. 1262232S_02 dated 24 January 2023 has now been issued by AENEC confirming the Proposed Development will meet the NSW Government's requirements for sustainability. I am therefore satisfied that the Proposed Development, as amended meets the requirements of the BASIX SEPP. 1. As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. The Court notes that: 1. In the course of these proceedings, the Applicant provided the Respondent with amended plans which are set out in the Agreement (Amended Plans). The parties agree that these Amended Plans are acceptable. 2. Pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 the application and Amended Plans were lodged on the NSW Planning Portal on 7 February 2023. 3. A copy of the Amended Plans was also provided to the Court on 7 February 2023. 1. The Court orders that: 1. The Applicant is granted leave to amend Development Application No. 2022/0106 and rely upon the Amended Plans and documents referred to in condition 1 to Annexure "A". 2. The Applicant's Class 1 appeal is upheld. 3. The Applicant's clause 4.6 written application regarding clause 4.4 of the Leichhardt Local Environmental Plan 2013 is upheld; and 4. Development Consent is granted to Development Application DA/2022/0106 to demolish the existing dwelling and outbuilding, tree removal, and undertake construction of a new three level residential dwelling on site with associated site and landscaping works at Lot 1 DP1268060 of 79 Rowntree Street, Birchgrove, subject to the conditions contained at Annexure "A". L Sheridan Acting Commissioner of the Court (Annexure A) (297724, 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: 26 April 2023