Land and Environment Court New South Wales Medium Neutral Citation: Ausbay Constructions Pty Ltd v Inner West Council [2024] NSWLEC 1643 Hearing dates: Conciliation conference on 20 September 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted for Development Application DA/2024/0293, as amended, for alterations and additions to the residential flat building, including a change of use to in-fill affordable housing, at 328-336 Liverpool Road, Ashfield, subject to the conditions at Annexure A. (3) 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 by the amendment of the development application to the agreed sum of $12,000 within 28 days of these orders. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – affordable housing – residential flat building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7 Land and Environment Court Act 1979, s 34 Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Regulations 2021, s 38 Environmental Planning Policy (Resilience and Hazards) 2021 Inner West Local Environmental Plan 2022, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.9 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10 State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 15C, 16, 18, 144, 147, Ch 2 Pt 2 Div 1, Ch 4, Sch 9 State Environmental Planning Policy (Sustainable Buildings) 2022 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120 Texts Cited: Inner West Council Community Engagement Strategy 2022-2024 NSW Department of Planning and Environment, Apartment Design Guide Category: Principal judgment Parties: Ausbay Constructions Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: E Whitney (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent) File Number(s): 2024/233580 Publication restriction: Nil Judgment 1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal, by Inner West Council, of development application DA/2024/0293, and have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The development application seeks consent for alterations and additions to a residential flat building to add two upper levels with 18 units, and incorporate in-fill affordable housing at 328-336 Liverpool Road, Ashfield (the site). 2. The Court arranged a conciliation conference between the parties, under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 20 September 2024. During this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting consent to the development application subject to conditions. 3. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Council agreed to the applicant amending the development application to adequately respond to their contentions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one 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 as amended. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained, and from this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified in accordance with the Inner West Council Community Engagement Strategy 2022-2024 from 2 June 2024 to 23 June 2024. Six submissions were received, and no residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. State Environmental Planning Policy (Housing) 2021 1. Pursuant to the requirements of s 15C of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), Ch 2 Pt 2 Div 1 applies to the development as in-fill affordable housing for the following reasons: 1. The development is permitted due to the existing use rights of the existing residential flat building (see below). 2. The development comprises more than 10% affordable housing. 3. The site is located within an MU1 Mixed Use zone. 1. Subsequently, as the development is classified in-fill affordable housing, a 30% floor space ratio (FSR) bonus and an equivalent height bonus is available to the development pursuant to ss 16 and 18 of the Housing SEPP. The proposed development utilises both bonuses to different extents (see below). 2. Pursuant to the parameters in s 144, Ch 4 of the Housing SEPP also applies to the development. As per the required considerations set out in s 147, the parties submit and I accept that: 1. The Design Verification Statement prepared by Urban Link dated 12 April 2024, and the addendum letter within the s 34 agreement adequately assesses the proposed development against the design quality principles set out in Sch 9 of the Housing SEPP and the Apartment Design Guide (s 147(1) and (2)). 2. The development application was not referred to a design review panel. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. The site is identified as being within the Sydney Harbour Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) and subsequently, Pt 6.2 applies to the site. Pursuant to the relevant requirements of Pt 6.2, from the parties' submission and the stormwater concept plans prepared by S&G Consultants (the stormwater concept plans), I accept that the development is confined to the existing building footprint and will utilise the existing stormwater system. It is not located in proximity to a natural waterway, and will have no impact on recreation or public access. Subsequently, the parties confirm that the matters identified in ss 6.6 to 6.10 have been considered, and the proposed development will not result in any of the adverse impacts listed in ss 6.6 to 6.10. Inner West Local Environmental Plan 2022 1. The subject site is zoned R3 Medium Density Residential and MU1 Mixed Use Zone under the Inner West Local Environmental Plan 2022 (IWLEP). The proposed development lies entirely within the MU1 zone, within which development for the purposes of a 'Residential Flat Buildings' is prohibited. However, there is an operational development consent (DA/2020/0051) for the existing residential flat building, which this application seeks to modify. Consent for the construction of this building was granted in September 2020, when the site was zoned R3 Medium Density Residential and B4 Mixed Use under the Ashfield Local Environmental Plan 2013, within which residential apartment buildings were permitted with consent. 2. Pursuant to IWLEP cl 4.3, a maximum building height of 23m applies to the subject site. However, pursuant to s 18 of the Housing SEPP, the allowable 30% height bonus results in a maximum height of 29.9m. The proposed development has a height of 26.86m and therefore is below the maximum allowable height. 3. IWLEP cl 4.4 establishes a maximum FSR for the site of 2:1. The proposed development again utilises the 30% bonus under s 16 of the Housing SEPP, which results in a maximum FSR of 2.6:1, which the development utilises to its full extent. 4. Pursuant to IWLEP cl 5.10, the site is not identified as a heritage item, nor located within a heritage conservation area, but is located in proximity to a number of heritage items. From the parties' submission and the Heritage Impact Statement by Weir Phillips Heritage dated 15 April 2024, I accept that the proposed development will have no detrimental impacts on the heritage significance of these items. 5. The site is identified as 'flood planning area' pursuant to IWLEP cl 5.21. From the parties' submission and the Flood Risk Management Plan by S&G Consultants dated 17 April 2024, I accept that the matters listed in cl 5.21(3) have been considered and the proposed development meets the requirements of cl 5.21(2). 6. Pursuant to IWLEP cl 6.1, the site is identified as Class 2 and 5 on the Acid Sulfate Soils Map, however the proposed works are not likely to lower the water table below 1m Australian Height Datum. Subsequently, the acid sulfate soils management plan is not required. 7. From the parties' submission and the stormwater concept plans, I accept that the application satisfies the stormwater-related requirements of IWLEP cl 6.3(3), being designed to maximise water permeable surfaces and avoiding any significant adverse impact of stormwater runoff. 8. The building is greater than 14m in height and as such IWLEP cl 6.9, Design Excellence applies. To that end, the Design Verification Statement, and the Statement of Environmental Effects by Weir Phillips Heritage and Planning dated 9 April 2024, provides an assessment of the development against the relevant criteria listed in cl 6.9(4). From this, the parties submit, and I accept that the proposed development exhibits design excellence. State Environmental Planning Policy (Resilience and Hazards) 2021 1. State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties' submission, I accept that there is no known contamination on the site, nor any history of contaminating activities and that the site is suitable for the continued residential use. Further, the works do not necessitate any additional excavation beyond that which was approved for the existing building. State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 1. Pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022, the proposal is a BASIX affected development. Accordingly, the application was accompanied by a BASIX certificate which the parties submit, and I accept, is satisfactory. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. The only street frontage for the subject site is Liverpool Road, which is a classified road and serves as the only vehicular access to the site. Pursuant to the requirements of s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP), based on the Traffic and Parking Assessment Report by Varga Traffic Planning dated 9 April 2024 and the parties' submission, I accept that vehicle access from this road is the only option. I further accept that the road and access design is such that the safety, efficiency and ongoing operation of the highway will not be adversely affected by the development in any of the ways listed in s 2.119(2)(b). 2. Further, as required by s 2.119(2)(c) of the Transport SEPP, the parties submit, and I accept, that the development is designed to adequately ameliorate potential traffic noise and vehicle emissions within the site arising from the Hume Highway, based on the recommendations and information provided in the following documents: * Acoustic Assessment by Acoustic Works dated 16 April 2024 * Air Quality Assessment by Todoroski Air Sciences, dated 23 September 2024 1. Additionally, from the above acoustic report and the parties' submission, I accept that appropriate measures have been taken in the design of the residential accommodation to ensure it meets the acoustic requirements of s 2.120(3) of the Transport SEPP. Conclusion 1. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. Inner West Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/2024/0293 to include the documents set out in Annexure B. 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted for Development Application DA/2024/0293, as amended, for alterations and additions to the residential flat building, including a change of use to in-fill affordable housing, at 328-336 Liverpool Road, Ashfield, subject to the conditions at Annexure A. 3. 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 by the amendment of the development application to the agreed sum of $12,000 within 28 days of these orders. E Washington 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: 15 October 2024