Environa Studio Pty Ltd v Inner West Council [2016] NSWLEC 1618

Land and Environment Court New South Wales

Medium Neutral Citation: Environa Studio Pty Ltd v Inner West Council [2016] NSWLEC 1618 Hearing dates: 10 November 2016 Date of orders: 20 December 2016 Decision date: 10 November 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. The application to modify the approval for a housing development containing live-work units at 39 Phillip Street, Newtown is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and B. Catchwords: MODIFICATION: modifications to change the approved live-work units by creating retail tenancies at the ground level and separate residential units at the first floor level – whether contrary to the objectives of the B7 Business Park zone and character of the area Legislation Cited: Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] 138 LGERA 237 Category: Principal judgment Parties: Environa Studio Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Mr J Strati, solicitor (Respondent)

Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent) File Number(s): 2016/00210865 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Application Number DA 2014/00388.01 for the modification under s 96(AA) of the Environmental Planning and Assessment Act 1979 of the development consent to the approved housing development containing live-work units at 39 Phillip Street, Newtown. 2. The modifications remove the proposed live-work units creating retail tenancies at the ground level, and separate residential units at the first floor level. The proposed modifications specifically provide for: * Basement: reconfiguration to accommodate an additional accessible parking space, and provide residential storage areas. There are 13 spaces including three accessible spaces. There is no increase in the number of spaces from the original approval. * Ground floor: the deletion of the live-work units with the removal of the internal stairs between the ground first floor of the three units fronting Gladstone Street and two units fronting Phillip Street. Deletion of the internal separation between the units and conversion to a retail space of 198 sq m at Gladstone Street and 73 sq m at Phillip Street and change to the garbage storage area with the separate retail garbage storage room and modifications to the toilet. * First floor: the conversion of the live/work units to separate residential units by three studios, a one bedroom unit and a two bedroom unit. Increase the balcony areas for Unit 3 to 30 sq m and reduce the balcony for Unit 4 to 13.5 sq m. 1. The modified development ultimately comprises a four story building with three retail premises ranging from 73 sq m to 198 sq m at ground level, and 11 residential units at the upper levels of the building and basement car parking for 13 vehicles. 2. The council maintains that the modification application should be refused for two principal reasons: * it is contrary to the objectives of the B7 Business Park zone, and cl 6.13 of the Marrickville Local Environmental Plan 2011 (LEP 2011) and supporting s 6.6 of the Marrickville Development Control Plan 2011 (DCP 2011), and * it is not compatible with the character of the locality.