Land and Environment Court New South Wales Medium Neutral Citation: Newey Holdings Pty Ltd v Inner West Council [2023] NSWLEC 1593 Hearing dates: Conciliation conference held on 15 August and 18 September 2023. Final agreement filed 19 September 2023 Date of orders: 10 October 2023 Decision date: 10 October 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA/2022/0624 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) The appeal is upheld. (3) Consent is granted to Development Application DA/2022/0624 (as amended) for construction of a 2-3 storey commercial building with basement car parking at 41 May Street, St Peters, subject to the conditions of consent set out at Annexure A. Catchwords: DEVELOPMENT APPLICATION – commercial development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, ss 37, 38 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cll 2.3, 6.1, 6.2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Newey Holdings Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: C Gough (Solicitor) (Applicant) M Pearce (Solicitor) (Respondent) Solicitors: Storey and Gough Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2023/78579 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Newey Holdings Pty Ltd (the Applicant), against the refusal of Development Application DA/2022/0624 (the DA) by Inner West Council (the Respondent). At the time of its lodgement, the DA sought consent for the construction of a 2–3 storey commercial building at 41 May Street, St Peters (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 August and 18 September 2023. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular note, the proposal has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of owners consent, site amalgamation, built form, bulk and scale, streetscape presentation, parking and loading, visual privacy and cross viewing, and tree impacts amongst others. 5. The amended DA has been refined to create a more contextual building form and alignment as it presents to the primary street address. It has also been amended to eliminate opportunities for cross viewing, to avoid an existing encroachment created by a neighbouring property and ensure the retention of an existing street tree. 6. 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 amended DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 9. The DA was publicly notified for 21 days between 24 August and 14 September 2022. Four submissions were received by the Respondent raising issues including concerns for building bulk and scale, streetscape, overshadowing, visual privacy impacts, site amalgamation and impacts on the road network. 10. The parties agree, and I am satisfied, that the amended DA satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 11. The parties agree, and I am satisfied, that the Marrickville Local Environmental Plan 2011 (MLEP) was the relevant local environmental planning instrument at the date of the DA's lodgement. The site is zoned B5 Business Development and the proposed development - characterised as commercial premises - is permissible with consent. 12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the MLEP, the proposed development is consistent with the B5 Business Development zone objectives, which include enabling a mix of business and warehouse uses and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres. 13. The parties agree, and I am satisfied, that all principal development standards of the MLEP have been met by the amended DA, specifically height of buildings and floor space ratio. 14. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the MLEP, Acid sulfate soils, the site is mapped as being within a Class 5 acid sulfate soils area. However, the amended DA is unlikely to encounter acid sulfate soils in this location and accordingly no acid sulfate soils management plan is required. 15. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the MLEP, Earthworks. The Applicant has provided sufficient information and supporting studies to enable the Respondent to properly consider the matters set out in cl 6.2(3). Agreed conditions of consent are imposed. 16. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. The Applicant has provided a Detailed Site Investigation (Phase 2), dated 23 June 2022 and prepared by BHM Geotechnical, which concludes that no potential contamination sources exist and the site is suitable for the proposed development. Conditions of consent are imposed to ensure implementation of the recommendations of this report. Accordingly, the parties agree, and I am satisfied the DA addresses those matters outlined at s 4.6 of SEPP Resilience. 17. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 18. The Court notes that: 1. Pursuant to sections 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Respondent, as the relevant consent authority, has approved the Applicant amending the DA. 2. The Applicant has filed the amended DA with the Court on 19 September 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA/2022/0624 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. 2. The appeal is upheld. 3. Consent is granted to Development Application DA/2022/0624 (as amended) for construction of a 2-3 storey commercial building with basement car parking at 41 May Street, St Peters, subject to the conditions of consent set out at Annexure A. M Pullinger 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: 10 October 2023