Marrickville Development No.3 Pty Ltd v Inner West Council [2019] NSWLEC 1132

Land and Environment Court New South Wales

Medium Neutral Citation: Marrickville Development No.3 Pty Ltd v Inner West Council [2019] NSWLEC 1132 Hearing dates: 19 February 2019 Date of orders: 28 May 2019 Decision date: 14 May 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: Directions. See [111]. Orders. See [114]. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of two semi-detached, two storey, dwelling houses – Torrens subdivision of one lot into two lots – interpretation of FSR development standard in Marrickville LEP 2011 – whether solar access impacts of proposed development are acceptable – whether impacts on a street tree are acceptable. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environment Plan 2011 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Marrickville Development No. 3 Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Barrister: T To (Applicant)

Solicitors: Mills Oakley (Applicant) S Turner, Inner West Council (Respondent) File Number(s): 2018/8000 Publication restriction: No

Judgment 1. COMMISSIONER: Marrickville Development No.3 Pty Ltd (the Applicant) has appealed the deemed refusal by Inner West Council (the Respondent) of its development application (DA2017/00562) for demolition of an existing dwelling, and construction of two semi-detached dwelling houses, at 81 Station Street, Newtown (the Subject Site), also identified as Lot 8 in DP 316. 2. The development includes: 1. demolition of an existing single storey dwelling, together with a garage and shed; 2. construction of two (2) semi-detached dwelling houses each of two storeys; 3. Torrens title subdivision of the Subject Site into two allotments, with one dwelling on each of the resultant allotments; 4. The proposed subdivision would create two lots, each with a frontage of 4.725M, and with areas of 144.9m2 (proposed lot 81 [northern lot]) and 145m2 (proposed lot 81A [southern lot]). 1. The Subject Site is located on the western side of Station Street, west of Holt Street, and with a rear boundary to College Lane. 2. The Subject Site is zoned R2 Low Density Residential under Marrickville Local Environment Plan 2011 (MLEP). 3. The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is heard under s 34 of the Land and Environment Court Act 1979. 4. The Court convened a conciliation conference with the Parties on 1 August 2018. I presided over the conciliation conference that was held on-site and at Court. The Parties were unable to resolve contentions between them during the conciliation conference and so the conference was terminated. 5. The Parties appeared before the Registrar for further directions on 8 August 2018, and consented to me disposing of the matter at hearing. 6. The Parties appeared again before the Registrar on 11 October 2018, and leave was granted for the Applicant to amend its application and rely on amended plans and other supporting documentation. 7. The Court undertook a view of the Subject Site prior to the commencement of proceedings at Court, and during which submissions were received from the following individuals: 1. Ms Elizabeth Yeo, a resident of the adjoining property on Station Street who said: 1. the proposed development was not, in her opinion, consistent with the character of the area; 2. she held a concern in relation to the potential overshadowing impacts of the proposed development on her property; 3. she did not feel that she had had access to adequate information on the proposed development in relation to proposed finishes, elevations and parking. 1. Ms Elizabeth Teece, a resident of an adjoining property on Holt Street at the rear of the Subject SIte, who said that: 1. as noted by Ms Yeo, the proposed development was not, in her opinion, consistent with the character of the area; 2. she held concerns in relation to the potential impacts of the proposed development on her privacy, on trees, the heritage of the area, and on the rear wall of her property. 1. Mr Chris Chesher, a resident of Holt Street whose property adjoined the front Subject Site, who said he held concerns in relation to: 1. the scale, design, proposed setbacks of the proposed development; 2. the potential impacts of the proposed development on views, property values and established trees on the Subject Site. 1. At the commencement of the hearing at Court, the Applicant sought leave to further amend its application and to rely on further amended plans, referred to in the hearing as the Issue F plans, and leave was granted, without objection. 2. The Parties advised that several issues that had been in contention between them at the commencement of the appeal had been resolved on the basis of the amended plans, as well as through proposed conditions of development consent proposed by the Respondent, as follows: 1. whether the proposed subdivision of the Subject Site represented orderly development of the land, and in relation to which the respondent advised that it accepted that subdivision of the site was acceptable; 2. the area of landscaping required to be included within the proposed development , identified as 45m2 or 20% of the Subject Site, and which the Parties agreed was provided under the amended plans, other than in the circumstances of the proposed dual use of the rear area for both private open space and car parking; 3. the management of waste generated by the proposed development; 4. the provision of adequate setbacks, including the provision of an adequate front setback; 5. heritage issues, other than in relation to the removal of a tree within a heritage zone which requires consent, and in relation to which the Applicant had proposed the removal of a tree identified as tree T3; 6. the suitability of the presentation of the rear built form to Station Street, which, on the advice of the Parties' expert planners, the Parties agreed was now acceptable as proposed within the amended plans. 1. The Parties confirmed that the principal issues requiring resolution at the hearing related to the following issues: 1. the floor space ratio (FSR) development standard applicable to the proposed development; 2. the bulk and scale of the proposed development, and in particular the potential impacts of the rear first floor element of the two dwellings and whether the rear bedrooms of those dwelling should be deleted from the proposed development; 3. the proposed dual use of the rear yard of the proposed development as both private open space and a car parking space; 4. the potential impacts of the proposed development on a street tree identified as Tree T3, and whether the Applicant's proposed mitigation measures were sufficient to address those potential impacts.