Land and Environment Court New South Wales Medium Neutral Citation: Murphy v Inner West Council [2023] NSWLEC 1553 Hearing dates: Conciliation conference on 15 September 2023 Date of orders: 25 September 2023 Decision date: 25 September 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is granted leave to rely on the documents listed in Annexure A. (2) The Applicant shall pay the Respondent's costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $8,500.00 within 28 days of the date of this order. (3) The request pursuant to clause 4.6 of the Marrickville Local Environmental Plan to vary clause 30(1)(h) of the State Environmental Planning Policy (Affordable Rental Housing) 2009, as prepared by GAT & Associates dated 15 September 2023, is upheld. (4) The appeal is upheld. (5) Development Consent is granted to Development Application DA/2021/0172 for demolition of part of the premises and alterations and additions to construct a 4-storey mixed use development comprising a ground floor retail tenancy with a boarding house above at 491 Marrickville Road, Dulwich Hill, subject to the conditions of consent at Annexure B. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to mixed use development in B2 Local Centre zone – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.15 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Julie Murphy (Applicant) Inner West Council (Respondent) Representation: Counsel: S Paterson (Solicitor) (Applicant) R Dunstan (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Inner West Council (Respondent) File Number(s): 2022/387841 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Inner West Council (the Respondent) of Development Application No DA/2021/0172 that seeks consent to demolish part of the premises and carry out alterations and additions to construct a 4 storey mixed use development comprising a ground floor retail tenancy with a boarding house above, at 491 Marrickville Road, Dulwich Hill. 2. On 15 September 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 15 September 2023, in accordance with s 34(10) of the LEC Act. 4. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 6. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 7. The development application, lodged on 18 March 2021, is supported by the written consent of the owner. The Council advertised the development application between 30 March 2021 and 22 April 2021, in response to which 5 submissions were received. 8. The site is located within an area identified by the Marrickville Local Environmental Plan 2011 (MLEP), at the time the development application was lodged, as B2 Local Centre zone in which the proposed uses are permitted with consent. The objectives of the B2 zone are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To provide housing attached to permissible non-residential uses which is of a type and scale commensurate with the accessibility and function of the centre or area. • To provide for spaces, at street level, which are of a size and configuration suitable for land uses which generate active street-fronts. • To constrain parking and reduce car use. Motorcycle parking is not provided 1. As the development application was lodged in March 2021, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) apply to the subject site. 2. Clause 30 of the ARH SEPP contains standards about which the consent authority must be satisfied. The parties are satisfied that the proposed development complies with the relevant standards with the exception of motorcycle parking which is supported by a cl 4.6 of the MLEP written request which the parties consider to be well-founded. 3. I am also satisfied that contravention of the development standard is justified in the circumstances of the case, and that compliance is unreasonable or unnecessary for reasons set out in the written request authored by GAT & Associates in accordance with cl 4.6 of the MLEP. Those reasons may be distilled as relying on consistency with the aims of the ARH SEPP in lieu of objectives for the particular standard that is proposed to be varied. In essence, the written request defines the contravention as 1 motorcycle space, where 2 more bicycles spaces are provided than are required on a site located within 420m of the Dulwich Hill light rail stop, where there are bus services at the frontage of the site, and where failure to provide 1 motorcycle space does not adversely impact the delivery of affordable housing in a commercial area. 4. I am also satisfied, in this instance, that there are sufficient environmental planning grounds to justify the contravention given the shortfall is only one space, and is in such close proximity of public transport options. In arriving at this conclusion I note the highly urbanised setting in a heritage conservation area and on a site that parties have agreed is deserving of a schedule of conservation works. 5. Finally, the written request asserts consistency with the objectives of the zone, at [8], because the proposed variation does not preclude a mixed-use development and facilitates a more active street frontage than would otherwise be the case if dedicated to motorised vehicles, and by which the architectural and urban design quality of the area is enhanced. 6. I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the aims of the ARH SEPP, in lieu of objectives, and the objectives for development in the B2 zone. 7. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP. 8. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the standard at cl 30(1)(h) of the ARH SEPP. 9. I am satisfied under cl 4.6(4) of the MLEP that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the aims of the ARH SEPP that may be considered the underlying objective in this case, and the objectives for development within the B2 Zone, for the reasons given in the request. 10. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the written request. Marrickville Local Environmental Plan 1. A height standard of 17m, and a floor space ratio (FSR) of 2.2:1 applies to the site by virtue of cll 4.3 and 4.4 of the MLEP respectively. The proposed development complies with both the height and FSR standard. 2. The site is a contributory item within a row of ten contributory items within the Dulwich Hill Commercial Precinct Heritage Conservation Area (Dulwich Hill HCA). As such, the proposal is supported by a Heritage Impact Statement prepared by Tropman & Tropman Architects, dated 29 June 2022 that concludes the proposal is acceptable, and recommends a scope of heritage conservation works be prepared. A Schedule of Conservation Works accompanies the final proposal, and is cited at Condition 1 of the agreed conditions of consent. On this basis, I accept the impact of the proposed development is acceptable, when the provisions of cl 5.10 are considered. 3. The site is not identified on the Acid Sulfate Soils Map at cl 6.1(2) of the MLEP as being classified as any class of Acid Sulfate Soil, and the development does not rely upon excavation of the soil. Likewise, I have considered those matters at cl 6.2(3) of the MLEP and regard the earthworks as no more than ancillary. 4. As the proposed development comprises boarding house development, cl 6.15 of the MLEP requires that no part of the boarding house, other than access, car parking and waste storage, is located at street level. I am satisfied the proposal complies with this requirement. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. Clause 30A of the ARH SEPP precludes the grant of consent unless consideration has been given as to whether the design of the development is compatible with the character of the local area. 2. Consideration of the local character is contained in the Statement of Environmental Effects prepared by GAT & Associates dated March 2021 with an assessment of the proposal in terms of landform, street patterns and views and vistas. I note the assessment concludes that the proposal has been well articulated through the proposed materials and finishes and balance of solids to voids. Accordingly, I conclude the development is compatible with the character of the local area. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 precludes development consent to any development unless it has been considered whether a site is contaminated or on potentially contaminated land, and if it is, that it is satisfied that the land is suitable, or will be suitable after undergoing remediation, for the proposed use. 2. The Respondent advises there is no known use that would result in the contamination of the land, and I note the development proposes to cap, and not excavate, the site. For those reasons, I accept the site is suitable for the proposed development. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The application is accompanied by a BASIX certificate (Cert No 1155487S_02), prepared by GAT & Associates in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000. Conclusion 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that: 1. Pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000, the Respondent, as the relevant consent authority, has approved the Applicant amending Development Application DA/2021/0172, in accordance with the plans and documents listed in Annexure A (Amended Application). 2. The Applicant has filed the Amended Application with the Court. Orders 1. The Court orders that: 1. The Applicant is granted leave to rely on the documents listed in Annexure A. 2. The Applicant shall pay the Respondent's costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $8,500.00 within 28 days of the date of this order. 3. The request pursuant to clause 4.6 of the Marrickville Local Environmental Plan 2011 to vary clause 30(1)(h) of the State Environmental Planning Policy (Affordable Rental Housing) 2009, as prepared by GAT & Associates dated 15 September 2023, is upheld. 4. The appeal is upheld. 5. Development Consent is granted to Development Application DA/2021/0172 for demolition of part of the premises and alterations and additions to construct a 4-storey mixed use development comprising a ground floor retail tenancy with a boarding house above at 491 Marrickville Road, Dulwich Hill, subject to the conditions of consent at Annexure B. T Horton Commissioner of the Court Annexure A Annexure B ********** 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: 25 September 2023