Land and Environment Court New South Wales Medium Neutral Citation: Appwam Pty Ltd v Inner West Council [2023] NSWLEC 1216 Hearing dates: Conciliation conference on 16 February 2023 Date of orders: 09 May 2023 Decision date: 09 May 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders: (1) Leave is granted to the applicant to amend the development application DA/2021/0651 to rely on the amended plans and document identified in Annexure A. (2) The Appeal is upheld. (3) Development Application DA/2021/0651 for construction of a mixed use development comprising of ground level commercial premises and a 76 room boarding house with managers residence over basement parking at 1 The Esplanade, 2-4 The Esplanade and 287 Liverpool Road, Ashfield is approved subject to the conditions annexed hereto and marked Annexure A. (4) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application in accordance with s 8.15(3) of the EPA Act in the amount of $17,500.00 payable within 7 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 Ashfield Local Environmental Plan 2013, cl 2.2 Inner West Local Environmental Plan 2022, cl 1.8A State Environmental Planning Policy (Housing) 2021, Sch 7A s 2 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Appwam Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) S Hill (Solicitor)(Respondent) Solicitors: Messenger & Messenger Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/264360 Publication restriction: No Judgment 1. Commissioner: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Appwam Pty Ltd (the Applicant) against the refusal by Inner West Council (the Respondent) of Development Application No DA/2021/0651 on 12 April 2022. 2. The development application seeks consent for construction of a mixed use development comprising of ground level commercial premises and a 76 room boarding house with managers residence over basement parking at 1 The Esplanade, 2-4 The Esplanade and 287 Liverpool Road, Ashfield. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This commenced on 16 February 2023. 4. The parties advised the Court that an agreement under s 34(3) of the LEC Act was capable of being reached. The decision agreed upon by the parties is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. The Ashfield Local Environmental Plan 2013 (ALEP 2013) applies to the development. ALEP 2013 was repealed by the Inner West Local Environmental Plan 2022 (IWLEP 2022) on 12 August 2022. However, the savings provision contained in cl 1.8A of the IWLEP 2022 has the effect that the DA is to be determined "as though the [IWLEP 2022] had not commenced". 2. Pursuant to cl 2.2 of the ALEP 2013, the subject site is zoned B4 Mixed Use. Development for the purpose of commercial premises and boarding houses is permissible in the B4 zone. In determining the development application, consideration has been given to the objectives of the zone. 3. The application, as a boarding house, is assessed pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). This is because State Environmental Planning Policy (Housing) 2021 provides, in s 2, Sch 7A, that the Housing SEPP "does not apply" to a development application made, but not yet determined, on or before 26 November 2021, and that the SEPP ARH, as in force immediately prior to its repeal, continues to apply. Division 3 applies to the application. 4. The parties have reviewed, and agree, that the development application meets the standards listed at cl 30 of SEPP ARH. 5. In determining the development application, the parties have demonstrated that they have taken into consideration whether the design is compatible with the local area as required by cl 30A of the SEPP ARH. 6. In accordance with State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP), consideration has been given to whether the Land, on which the development is to occur, is contaminated. A detailed site investigation report is contained in the Development Application, entitled "Detailed Site Investigation Contamination Assessment" prepared by Soilsrock dated 21 July 2021. The report concludes that "the site can be made suitable for the proposed mixed use development" subject to compliance with a number of recommendations. There is a requirement to follow those recommendations within conditions 23 and 24 of the agreed conditions of consent. Relevant conditions are included in Appendix A. 7. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The updated certificate was prepared in respect of the amended material being the revised BASIX Certificate dated 19 April 2023 (Certificate Number: 1222945M_02). 8. The development application was publicly notified between 5 August 2021 and 26 August 2021 in accordance with Council's notification policy. Submissions were received, and considered, by Council. 9. Clause 6.1 (Earthworks) of the ALEP 2013 applies as earthworks are proposed. An updated Geotechnical Investigation Report has been prepared in respect of the amended material, being the report entitled "Geotechnical Site Investigation Report" prepared by Soilsrock dated 1 July 2021. The matters in cl 6.1(3) have been considered and the application is considered by the respondent to be acceptable. 1. As the parties decision is a decision 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. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware, of any jurisdictional impediment to the making of these orders. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the applicant to amend the development application DA/2021/0651 to rely on the amended plans and document identified in Annexure A. 2. The appeal is upheld. 3. Development Application DA/2021/0651 for construction of a mixed use development comprising of ground level commercial premises and a 76 room boarding house with managers residence over basement parking at 1 The Esplanade, 2-4 The Esplanade and 287 Liverpool Road, Ashfield is approved subject to the conditions annexed hereto and marked Annexure A. 4. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application in accordance with s 8.15(3) of the EPA Act in the amount of $17,500.00 payable within 7 days of the date of these orders. S Harding AC 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: 09 May 2023