Andonovski v Inner West Council [2018] NSWLEC 1668

Land and Environment Court New South Wales

Medium Neutral Citation: Andonovski v Inner West Council [2018] NSWLEC 1668 Hearing dates: Conciliation conference on 28 November 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [18] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; approving the development of two semi –detached dwellings and Torrens Title subdivision Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: George Andonovski (Applicant) Inner West Council (Respondent) Representation: Counsel: A Pickles SC (Applicant)

Solicitors: Hartley Solicitors (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/159653 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application (DA2017/00620) for the partial demolition of the existing built form, to allow for alterations and additions to provide for 2 x semi –detached dwellings, each with garage and studios, and the Torrens Title Subdivision of the site at 113 Station Street Newtown into two allotments. 2. The background facts, statutory framework and contentions are detailed in the Council's Statement of Facts and Contentions filed on 17 August 2018. It records that the site is located in the R2 Low Density Residential zone under the Marrickville Local Environmental Plan 2011 (MLEP) and that the development is permissible with consent. The site is also located within the Enmore Newton Heritage Conservation Area. 3. The proceedings were commenced pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and allocated by the Registrar to the mandatory conciliation and arbitration stream of development appeals under s 34AA of the Land and Environment Court Act 1979 (LEC Act). 4. The matter commenced on site on 28 November 2018 as a conciliation conference under s 34(1) of the LEC Act between the parties, which I have presided over. Following a view of the area and the neighbour's property, the parties agreed at the conference to amend the plans to address the Council's contentions and the concerns of the neighbour. The parties' heritage experts, Mr Phillips and Mr Moore I am told are satisfied with the amendments to the proposal. In particular, the changes to the roof form and boundary setbacks. They accept that the development is now consistent with the objectives and controls in the Marrickville Development Control Plan 2011 at Part 8.3.2.4 and 8.3.2.5 and Control C19 and C21. These objectives and controls require rear extensions to be no higher than the existing roof form and designed so as to not overwhelm the existing building form. In that regard, the heritage experts agree that the extensions visible from the street are consistent with the overall massing and form of the property. 5. The parties' planning experts, Mr Betros and Mr Chapman are also satisfied with the amended development. 6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting development consent to the development application subject to conditions. 7. 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(1)(a) of the EPA Act. However, there is a jurisdictional prerequisite that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisite has been satisfied in the following terms. 8. The development breaches the floor space ratio (FSR) development standard set out in cl 4.4 of the MLEP. The maximum permissible FSR under the standard is 0.7:1. The proposed FSR is 0.86:1. This represents a variation of 0.16:1 from the numerical FSR standard in cl 4.4 of the MLEP. 9. The applicant seeks a variation to the development standard in cl 4.4 of the MLEP and has lodged with the Council a written request pursuant to cl 4.6 prepared by Mr Betros dated November 2018. I have read the written request and I am satisfied that the written request has adequately addressed the matters required to be demonstrated under all relevant provisions of cl 4.6 (as discussed in the case of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118) for the following reasons. 10. Given that the proposed semi-detached dwellings are to be subdivided, the proposed lot sizes of 174.9m2 and 173.35m2 will generate an FSR of 1:1 in accordance with cl 4.4(2A) of the MLEP. The proposed FSR for each allotment will be compliant upon registration of the two lots. The variation will therefore be of a temporary nature. The proposal will present a pair of single storey semi-detached dwellings which are consistent with the scale of the other semi-detached dwellings and terrace style dwellings in the vicinity of the site. Moreover, a large proportion of the FSR will be concealed from College Street to the rear and from the neighbouring property. The basement level will only be perceptible from inside the site. The additional FSR provides for improved amenity for the dwellings without detriment to the streetscape nor the amenity of the neighbouring proprieties. The proposal is considered to be acceptable in the conservation area due to the retention of the singe storey presentation to Station Street whilst the presentation of the built form at the rear is also modest as the upper level is not in a roof form and the lower levels will not be prominent due to them being concealed by the garages and studios at the rear. There are no unreasonable amenity impacts. 11. Despite the non-compliance, the development achieves the objectives of the development standard and the zoning. It is only when the FSR is considered on the basis of an un-subdivided site that the proposed FSR is breached. The conditions of consent ensure the subdivision of the site and preclude a dual occupancy development. The development therefore achieves objective (a) to cl 4.4 because it will comply with the required FSR. 12. The proposal sits comfortably in the streetscape in terms of bulk and scale and complies with objective (b). 13. The proposed FSR does not generate unreasonable visual bulk and scale when viewed from the public domain and neighbouring sites thereby, in my assessment, achieves objective (c) to cl 4.4. 14. The development is also consistent with the objectives of the R2 Low Density Residential zone. It replaces an out-dated dwelling with 2 high quality semi-detached dwellings which assist in providing for the housing needs of the community; and meets the needs of the residents (respectively, zone objectives 1 and 2 which are relevant in this case). 15. Accordingly, for the reasons stated, I accept that compliance with the FSR development standard for FSR on the site is unreasonable and unnecessary in the circumstances of the case (cl 4.6(a)) and that there are sufficient environmental planning grounds to justify contravening the development standard. 16. Based on the evidence before me, 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. 17. 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. 18. The orders of the Court are: 1. The applicant is granted leave to amend the application and rely on the plans listed under Condition 1 below the heading 'The development must be carried out in accordance with plans and details listed below:' in Annexure 'A'; 2. The applicant's written request pursuant to clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking to justify the breach of the floor space ratio development standard set out in clause 4.4(a) of the MLEP dated November 2018 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the MLEP. Consequently, the applicants written request is well founded and upheld; 3. The appeal is upheld; and 4. Development application number DA 201700620 for alterations and additions to two attached dwellings, including a three-storey addition to the rear, garage with studio above and subdivision at 113 Station Street, Newtown is approved subject to the conditions in Annexure 'A'. ………………………. S Dixon Senior Commissioner of the Court Annexure A (116 KB, pdf) Plans Order (1) (4.84 MB, pdf)