Land and Environment Court New South Wales Medium Neutral Citation: APS Property Management Pty Ltd v Inner West Council [2023] NSWLEC 1696 Hearing dates: Conciliation conference held 18 September, 20 and 27 October, and 6 November 2023. Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-2022/0415 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the amount of $25,000 within 28 days of the date of these orders. (3) The appeal is upheld. (4) Consent is granted to Development Application DA-2022/0415 (as amended) for the demolition of existing building and structures and construction of a warehouse building containing 6 units at 113 Dobroyd Parade, Haberfield, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – warehouse development – agreement between the parties – orders Legislation Cited: Ashfield Local Environmental Plan 2013, cll 2.3, 4.3, 4.4, 5.10, 5.21, 6.1 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, s 38 Inner West Local Environmental Plan 2022 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 Category: Principal judgment Parties: APS Property Management Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: G McKee (Solicitor)(Applicant) S Kondilios (Solicitor)(Respondent) Solicitors: McKees Legal Solutions (Applicant) Hall and Wilcox (Respondent) File Number(s): 2023/108539 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by APS Property Management Pty Ltd (the Applicant) against the refusal of Development Application DA-2022/0415 (the DA) by Inner West Council (the Respondent). The DA sought consent for the demolition of existing building and structures and construction of warehouse development comprising 6 warehouse units at 113 Dobroyd Parade, Haberfield (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 18 September, 20 and 27 October, and 6 November 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 DA has been amended during the conciliation conference to resolve the contentions initially raised by the Respondent, which related to issues of tree loss, building siting and design, landscape design and heritage conservation, amongst other contentions. 5. The final design amendments include enhancements to the landscape design across the site and refinements to the proposed access driveway to ensure the retention of an existing tree. Additional revisions to the detailed layout of the warehouse has resolved the contentions raised regarding building siting and design. 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 between 16 June 2022 and 30 June 2022. One submission was received by the Respondent, which raised concerns for acoustic privacy, the proposed building height and its impact upon the Haberfield Heritage Conservation Area and for potential cross viewing impacts across site boundaries. The parties agree, and I am satisfied, that issues raised in submissions have been adequately addressed in the final amended DA. 10. The parties agree, and I am satisfied, that the Ashfield Local Environmental Plan 2013 (ALEP) is the relevant local environmental planning instrument, noting that the Inner West Local Environmental Plan 2022 came into force on 12 August 2022 after the DA was lodged but prior to it being determined. 11. At the date of the DA lodgement, on 31 May 2022, the site was zoned B6 Enterprise Corridor (now reformed as E3 Productivity Support), and the proposed development - characterised as warehouse development - is permissible with consent. I am satisfied the proposed development is consistent with the E3 zone objectives set out at cl 2.3 of the ALEP. 12. The parties agree, and I am satisfied, that all principal development standards of the ALEP have been met by the amended DA and specifically that the amended DA complies with the Height of Building development standard set out at cl 4.3 of the ALEP and complies with the Floor Space Ratio (FSR) development standard set out at cl 4.4 of the ALEP. 13. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the ALEP, Heritage conservation, the site is not identified as a heritage item, nor is it situated within a Heritage Conservation Area (HCA). However, the site's north-eastern boundary directly abuts the Haberfield HCA. 14. Consequently, the Applicant has provided a Heritage Impact Statement, prepared by Urbis and dated 19 October 2022, which concludes that the proposal has an acceptable heritage impact on the adjacent Haberfield Heritage Conservation Area. The parties agree, and I am satisfied, that cl 5.10 of the ALEP has been appropriately addressed. 15. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the ALEP, Flood planning, the DA has demonstrated those matters set out at cl 5.21(2) have been appropriately addressed. 16. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the ALEP, Earthworks, the amended DA proposes earthworks in a form which will not adversely impact the environmental functions and processes of the site or adjoining properties. The Applicant has prepared erosion and sediment controls plans and the matters set out at cl 6.1(3) have been considered by the Respondent. 17. 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 Stage 2 Detailed Site Investigation prepared by Sydney Environment Group and dated 25 October 2022, which concludes the site can be made suitable for the proposed development. 18. Similarly, the Applicant has provided a Remedial Action Plan, prepared by Sydney Environment Group and dated 25 October 2022, which further sets out a methodology for remediating the site. Conditions of consent are imposed to ensure implementation of the recommendations of this report. Accordingly, I am satisfied the DA addresses the matters outlined in s 4.6 of SEPP Resilience. 19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021, (SEPP Biodiversity) is an additional relevant environmental planning instrument. Pursuant to Ch 2 of SEPP Biodiversity, the DA as amended now proposes to retain one significant tree and seeks consent for the removal of a number of other existing trees. The Applicant has provided an Arborist Report, prepared by Jackson Nature works, and I am satisfied the amended DA conforms with the relevant provisions of SEPP Biodiversity. 20. 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. 21. The Court notes that: 1. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent. 2. The Applicant has filed the amended DA with the Court on 6 November 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA-2022/0415 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the amount of $25,000 within 28 days of the date of these orders. 3. The appeal is upheld. 4. Consent is granted to Development Application DA-2022/0415 (as amended) for the demolition of existing building and structures and construction of warehouse building containing 6 units at 113 Dobroyd Parade, Haberfield, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court ********** Annexure A Architectural Plan 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: 17 November 2023