Land and Environment Court New South Wales Medium Neutral Citation: Equity Land Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1157 Hearing dates: Conciliation conference on 4 April 2019 Date of orders: 03 May 2019 Decision date: 03 May 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The applicant is granted leave to amend the development application by relying on the amended documentation referred to in condition 1 of the conditions of consent at Annexure 'A.' (2) The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,000 paid within 21 days of the making of these orders. (3) The applicant's written requests under clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking a variation of the developments standards for height of buildings and floor space ratio under clauses 4.3 and 4.4 of the Marrickville Local Environmental Plan 2011 are upheld. (4) The appeal is upheld. (5) Development Application No. 201700587 for the demolition of all existing structures and construction of a mixed use development including basement parking and five storeys comprising two commercial tenancies and 28 apartments, at 38-48 Parramatta Road, Stanmore, is approved, subject to the conditions of consent at Annexure 'A.' Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement of the parties; mixed use development; exceedance of height of buildings and floor space ratio development standards; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Equity Land Holdings Pty Ltd (Applicant) Inner West Council Respondent) Representation: Counsel: C McEwen SC (Applicant) Solicitors: Mills Oakley (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/32698 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 201700587 for the demolition of all existing structures and construction of a mixed use development including basement parking and five storeys comprising two commercial tenancies and 28 apartments (the proposal) at 38-48 Parramatta Road, Stanmore (the site) by Inner West Council (the Council). 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 4 April 2019. I presided over the conciliation conference. 3. 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. 4. 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 development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 4.6(2) of the Marrickville Local Environmental Plan 2011 (LEP 2011). Planning framework 1. The site is zoned B4 Mixed Use pursuant to LEP 2011 (Land Zoning Map -Sheet LZN_003 of LEP 2011). The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To support the renewal of specific areas by providing for a broad range of services and employment uses in development which display good design. • To promote commercial uses by limiting housing. • To enable a purpose built dwelling house to be used in certain circumstances as a dwelling house. • To constrain parking and restrict car use. 1. The height of buildings development standard for the site is 14m (Height of Buildings Map - Sheet HOB_003 of LEP 2011). The objectives of the height of buildings development standard, at cl 4.3 of LEP 2011, are: (a) to establish the maximum height of buildings, (b) to ensure building height is consistent with the desired future character of an area, (c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity. 1. The floor space ratio (FSR) development standard for the site is 1.5:1 (Floor Space Ratio Map - Sheet FSR_003 of LEP 2011). The objectives for the FSR development standard at cl 4.4 of LEP 2011 are: (a) to establish the maximum floor space ratio, (b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas, (c) to minimise adverse environmental impacts on adjoining properties and the public domain. Contravention of the height of buildings development standard 1. The proposal has a maximum height above existing ground level of 15.12m. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning Ingenuity and dated 1 April 2019. 3. Clause 4.6(4) of LEP 2011 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2011 (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]): 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because: * The non-compliance is numerically minor, being a maximum breach in one corner of the proposal adjacent to the rear laneway of 1120mm and this point of the maximum breach is set into the site away from the sensitive southern boundary. This portion of the building envelope will not be visible from Parramatta Road. * The height non-compliance on the eastern edge of the site fronting Parramatta Road arises from the upper element of the façade of which is to be retained and restored as part of the proposal. The retention of the existing warehouse façade provides a positive urban design outcome. The existing building fabric to be retained breaches the control by 950mm. * The portion of the building envelope that exceeds the development standard creates minimal additional overshadowing at 9am and 12noon midwinter to the rear years of dwellings to the south of the site. The proposal complies with the controls for overshadowing in the Marrickville Development Control Plan 2011 (DCP 2011). * The portion of the building envelope that exceeds the development standard does not result in any privacy impacts. * The breach of the development standard permits the arrangement of floor space on the site in a manner that is effective in providing high levels of amenity to occupants of the development. The additional height enables a reduced footprint for the front and rear buildings in order to maximise building to building separation at the centre of the site. This assists with solar access to the apartments within the rear building and to the central open space. * The building envelope responds to the existing context including recent approvals with a similar massing to Parramatta Road and the rear laneway. 1. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 2. The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action at [25]). 3. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the height of buildings development standard as a justified response to the unique topography of the site, the retention of existing fabric and the built context of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard this way can be properly described as environmental planning grounds within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the B4 zone and the height of buildings development standard, to establish the maximum height of buildings; to ensure building height is consistent with the desired future character of an area; to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight; and to nominate heights that will provide an appropriate transition in built form and land use intensity. 3. The establishment of the maximum height of buildings for the site is achieved by the imposition of the development standard. I am satisfied that the overall building envelope of the proposal is broadly consistent with the goal of establishing a maximum building height of 14m in the B4 zone in this section of Parramatta Road, because the maximum height of the proposal is 1.12m above the development standard of 14m in an area of the site that falls below the level of the majority of the site area and in a small portion of the existing façade to be retained fronting Parramatta Road. 4. The site is located within the "Parramatta Road (Commercial)" precinct under s 9 of the DCP 2011. The Desired Future Character (DFC) for the area is articulated in s 9.3.2, as follows: "The desired future character of the area is: 1. To protect the identified Heritage Items within the precinct. 2. To protect the identified values of the HCA 5 Parramatta Road Commercial Precinct Heritage Conservation Area. 3. To protect and preserve contributory and period buildings within the precinct and require their sympathetic alteration or restoration. 4. To protect and enhance the character of streetscapes and public domain elements within the precinct including prevailing subdivision patterns, building typologies, materials and finishes, setbacks, landscaping, fencing, open space, carriageway and footpath design and kerb and guttering. 5. To ensure that buildings provide strong definition to the street through retention of the existing nil building setbacks. 6. To retain, as a minimum, the front portion of contributory buildings where they are contributory to the Parramatta Road Commercial Precinct Heritage Conservation Area and/or streetscape. 7. Where required, to protect, preserve and enhance the existing character of the streetscape, where only compatible development is permitted. 8. To ensure the street building frontage of infill development complements the siting (location and orientation), scale, form (height, massing and setback), proportion (height to width and solid to void), rhythm, pattern, detail, material, colour, texture, style and general character in the design of the existing predominantly traditional two storey commercial streetscape, without being imitative. 9. To ensure that there are active commercial fronts to new buildings facing onto streets to create a vibrant and safe streetscape. 10. To ensure that any new residential development considers the amenity of residents in terms of noise and pollution generated by traffic volumes along Parramatta Road. 11. To ensure that higher density development demonstrates good urban design and environmental sustainability and provides suitable amenity for occupants of those developments. 12. To ensure that the design of higher density development protects the residential amenity of adjoining and surrounding properties. 13. To ensure that new development considers all potential impacts to biodiversity. 14. To support pedestrian and cyclist access, activity and amenity including maintaining and enhancing the public domain quality. 15. To ensure that new development respects local fauna by minimising lighting impacts on nocturnal fauna; reinforcing the permeability of the GreenWay Corridor to the surrounding built environment for local fauna; and providing a minimum 3 metre native vegetation buffer between the GreenWay Corridor and any new development. 16. To ensure that the provision and design of any parking and access for vehicles is appropriate for the location, efficient, minimises impact to streetscape appearance and maintains pedestrian safety and amenity." 1. The retention of the Parramatta Road façade, although not identified as a heritage item or within a heritage conservation area, will contribute to achieving the objectives of the DFC for the Parramatta Road elevation, by retaining and preserving some of the elements that contribute to the existing character of Parramatta Road. 2. The proposal achieves satisfactory solar access with 78.6% of apartments achieving 2 hours of solar access at the winter solstice. Contravention of the FSR development standard 1. The proposal has a FSR of 2.124:1. 2. The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Planning Ingenuity and dated 1 April 2019. 3. The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal has an absence of any material impacts on the amenity of adjoining properties and provides good amenity for the future occupants of the proposal. Furthermore, the proposed building envelope is similar to nearby recently approved development with similar characteristics to the site, including 80-84 Parramatta Road, Stanmore (FSR 2.33:1); 30-34 Parramatta Road, Stanmore (FSR 1.76:1) and 52-54 Parramatta Road, Stanmore (FSR 1.77:1). Although two of these developments are for boarding houses, neither application was eligible for the "bonus FSR" under the State Environmental Planning Policy (Affordable Rental Housing) 2009. 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the FSR development standard as a justified response to the built context of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard, to establish the maximum floor space ratio; to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas; and to minimise adverse environmental impacts on adjoining properties and the public domain. 2. The establishment of the FSR development standard for the site is achieved by the imposition of the development standard. I am satisfied that the overall building envelope of the proposal is broadly consistent with the goal of establishing a maximum FSR of 1.5:1 in the B4 zone in this section of Parramatta Road, because the proposal maintains the existing façades of Parramatta Road and the proposal is consistent with the bulk and scale of the existing development when viewed from Parramatta Road and its built context. 3. The proposal minimises adverse environmental impacts on adjoining properties and the public domain because the additional floor space above the FSR development standard can be said to be provided at the centre of the proposed development or in the upper level of the southern building and neither element of the building envelope results in additional adverse impacts on solar access to adjoining properties. The siting of the buildings avoids unreasonable adverse impacts on neighbouring properties and is consistent in built form and character with the built context of the site, including recent development approvals. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the development application by relying on the amended documentation referred to in condition 1 of the conditions of consent at Annexure 'A.' 2. The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,000 paid within 21 days of the making of these orders. 3. The applicant's written requests under clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking a variation of the developments standards for height of buildings and floor space ratio under clauses 4.3 and 4.4 of the Marrickville Local Environmental Plan 2011 are upheld. 4. The appeal is upheld. 5. Development Application No. 201700587 for the demolition of all existing structures and construction of a mixed use development including basement parking and five storeys comprising two commercial tenancies and 28 apartments, at 38-48 Parramatta Road, Stanmore, is approved, subject to the conditions of consent at Annexure 'A.' __________________ Susan O'Neill Commissioner of the Court Annexure A (281 KB, pdf) ********** 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: 03 May 2019