Land and Environment Court New South Wales Medium Neutral Citation: Hodge v Inner West Council [2019] NSWLEC 1187 Hearing dates: Conciliation conference 23 April 2019 Date of orders: 30 April 2019 Decision date: 30 April 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See [24] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy 55 – Remediation of Land Leichhardt Local Environmental Plan 2013 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: Michael Hodge (Applicant) Inner West Council (Respondent) Representation: Solicitors: S Griffiths, Bartier Perry Lawyers (Applicant) G Christmas, Apex Planning and Environment Law (Respondent) File Number(s): 18/258914 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent's deemed refusal of development application D/2018/208 (DA). The DA sought consent for the demolition of the existing attached dwellings and construction of two new attached dwellings with basement garages, boundary adjustment and associated works on land identified as Lot A in Deposited plan 383726 and Lot B in Deposited Plan 383726, and known as 18-20 Rose Street, Birchgrove. Conciliation and agreement between the parties 1. 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 23 April 2019. I presided over the conciliation conference. 2. At the conciliation conference, the parties evidenced agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied. Jurisdiction 1. I accept the advice of the parties that the DA was properly made. I note the proposal is for two dwelling houses, permissible development in the R1 General Residential zone in Leichhardt Local Environmental Plan 2013 (LEP). I have had regard to the zone objectives in accordance with cl 2 of the LEP. In regard to the proposed earthworks, in particular that associated with the basement level, I have also considered the matters I am required to at cl 6.2(3) of the LEP. The parties advise that these matters are addressed in the Geotechnical Investigation Report prepared by Morrow and dated 31 October 2017 and an Addendum to that report, also prepared by Morrow and dated 31 March 2019. I further note that the final plans and conditions evidence due consideration of the submissions from objectors. 2. Clause 7 of State Environmental Planning Policy 55 – Remediation of Land (SEPP 55), requires a consent authority to consider several matters before granting development consent. The parties advice is that Council considered whether the land is contaminated and, on account of the land being historically used for residential purposes, resolved that: * There is no evidence to suggest that the land is contaminated; and * No investigation of the land is warranted. I am satisfied that the requirements of cl 7 of SEPP 55 are addressed. Consideration of floor space ratio contravention 1. The proposed development results in a relatively minor breach of the floor space ratio (FSR) development standard. Pursuant to cl 4.4(2B)(b)(ii) of the LEP, the applicable FSR is 0.9:1. The proposed development will result in a FSR of 0.99:1 for both dwellings/lots of the proposed development. The applicants (via their planning advisors Burrell Threlfo Pagan Pty Ltd) have submitted a written request seeking to justify the contravention. 2. There are permissive powers in cl 4.6(2) of the LEP which allow for development consent to be granted for a development that contravenes a development standard. The opening up of this facultative power is subject to preconditions. The first precondition is concerned with my consideration of the applicant's written request. The second precondition is concerned with more direct opinions which I come to below. 3. The first condition requires me to form two positive opinions of satisfaction in regard to the applicants' written request. The first of these is that adequately addresses the question of whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)). 4. The written request includes argument to suggest the "the objectives of the development standard are achieved notwithstanding non­ compliance with the standard". This is one of the ways identified, in Wehbe v Pittwater Council [2007] NSWLEC 827, as capable of demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. I have reviewed the objectives of the standard as nominated in the LEP (cl 4.4(1)) and the content of the written request addressing these objectives as follows: Bulk, form and scale compatible with desired future character. The proposal exceeds the FSR standard because of the inclusion of areas at basement level; that is, areas generally below existing ground level that will not contribute to the perceived bulk or mass of the building. The proposed built form is designed in contemporary style with complementary references to the setbacks, massing, scale and materials of surrounding buildings and is satisfactory in heritage and streetscape terms. With respect in particular to the relevant desired future character provisions of part 2.2.2.6 Birchgrove Distinctive Neighbourhood of Leichhardt Development Control Plan 2013, the proposal is consistent with the mixed one- and two-storey scale in the vicinity, maintains the existing lot sizes, semi-detached housing form, hipped and gable roof forms and established street setback, generally complies with the 6m wall height building envelope control and its rendered and painted masonry walls, corrugated galvanised steel roofs and prefinished aluminium-framed doors and windows will be consistent with the character of the surrounding streetscape. Balance between landscaped area and built form: The proportion of built form to unbuilt-upon area will be typical of that in the neighbourhood and the proposal complies with the development standards for landscaped area and site coverage. Impact of bulk and scale: The proposal exceeds the FSR standard because of the inclusion of areas at basement level of each proposed dwelling that will not contribute to the perceived bulk or mass of the buildings or affect scale. The proposed buildings are similar in bulk and scale to those adjoining on either side. They are generally consistent with Council's detailed planning controls and in particular with those related to bulk and scale; that is, site coverage, wall height, building envelope and solar access to neighbouring dwellings 1. I have considered the above and am satisfied that the written request has adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. 2. The second opinion of satisfaction required of me in regard to the applicants' written request is that it adequately addresses the requirement to demonstrate there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request suggests the following environmental planning grounds are relevant: The non-compliant elements of the proposal are at basement level, where they will not affect the perceived built form, which is satisfactory in heritage and streetscape terms and consistent with Council's planning controls. The provision of a basement garage for each house will reduce the occupants' demand for on-street parking, which is limited in this locality of narrow streets and property frontages. The provision of basement parking will not generate adverse traffic impacts. The non-compliant elements at basement level will not affect the amenity of neighbouring properties in terms of solar access, privacy or views. 1. The FSR contravention is in a considerable way in response to the provision of basement car parking. I accept as sufficient environmental planning grounds the on-site parking and flow-on effects in regard to local parking availability. I am satisfied that the written request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify contravening the standard. 2. The second precondition (cl 4.6(4)(a)) requires me to be directly satisfied in certain ways. The first requires me to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. Further to my comments above, I can confirm, for reasons in alignment the written request, that I am directly satisfied that the proposal is consistent with the objectives of the particular development standard that is contravened. 3. I turn to (relevant) zone objectives, which are as follows: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • ... • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • … • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. The proposal clearly assists in meeting housing needs and would form part of the variety of type and density, with provision for on-site parking a particular defining feature. There is opportunity for the housing to accommodate working from home. The expert planners have agreed that the housing, following various modifications as developed in dialogue between the parties, is compatible with its surrounds, is sufficient in landscape terms and is satisfactory in regard to amenity impacts. I note the positions of the experts and confirm a direct opinion of satisfaction that the proposal is consistent with the objectives of the zone. 2. In turn I am satisfied that 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. 3. Finally in regard to cl 4.6 there is a requirement that the concurrence of the Secretary be obtained, a power which the Court can assume. I note the FSR consideration here is local in scope and raises no matters of significance for State or regional environmental planning. 4. The cl 4.6 request to vary the FSR standard the LEP can be upheld. Conclusion 1. Based on the above details, 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. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 4. The Court orders: 1. The Applicant is granted leave to amend Development Application No. D/2018/208 and to rely upon the following amended plans and documents, copies of which are included at Annexure "A": Plan Reference Prepared by Date 2017/06/DA01 (Revision G) – Cover Oikos Architects 29 March 2019 2017/06/DA03 (Revision G) – Plan – Site Oikos Architects 29 March 2019 2017/06/DA04 (Revision G) – Plan – Basement Oikos Architects 29 March 2019 2017/06/DA05 (Revision G) – Plan – Ground Floor Oikos Architects 29 March 2019 2017/06/DA06 (Revision G) – Plan – First Floor Oikos Architects 29 March 2019 2017/06/DA07 (Revision G) – Plan – Roof Oikos Architects 29 March 2019 2017/06/DA08 (Revision G) – Elevation – Northeast (Rose St) Oikos Architects 29 March 2019 2017/06/DA09 (Revision G) – Elevation – Southwest Oikos Architects 29 March 2019 2017/06/DA10 (Revision G) – Elevation – Southeast Oikos Architects 29 March 2019 2017/06/DA11.0 (Revision G) – Elevation – Northwest Oikos Architects 29 March 2019 2017/06/DA11.1 (Revision G) – Elevation – Party Wall Oikos Architects 29 March 2019 2017/06/DA12 (Revision G) – Section AA Oikos Architects 29 March 2019 2017/06/DA13 (Revision G) – Section BB Oikos Architects 29 March 2019 2017/06/DA14 (Revision G) – Section CC Oikos Architects 29 March 2019 2017/06/DA15 (Revision G) – Section DD Oikos Architects 29 March 2019 2017/06/DA16 (Revision G) – Shadow Diagram: Jun 21 9-10am Oikos Architects 29 March 2019 2017/06/DA17 (Revision G) – Shadow Diagram: Jun 21 11am-12noon Oikos Architects 29 March 2019 2017/06/DA18 (Revision G) – Shadow Diagram: Jun 21 1-2pm Oikos Architects 29 March 2019 2017/06/DA19 (Revision G) – Shadow Diagram: Jun 21 3pm Oikos Architects 29 March 2019 2017/06/DA21 (Revision G) – Solar Access Private Open Space Oikos Architects 29 March 2019 2017/06/DA22 (Revision G) – Finishes Schedule Oikos Architects 29 March 2019 2017/06/DA24 (Revision G) – Area Schedule Oikos Architects 29 March 2019 2017/06/DA25.1 (Revision G) – Shadow Elevations-June 21 9am Oikos Architects 29 March 2019 2017/06/DA25.2 (Revision G) – Shadow Elevations-June 21 10-11am Oikos Architects 29 March 2019 2017/06/DA25.3 (Revision G) – Shadow Elevations-June 21 Noon-1pm Oikos Architects 29 March 2019 2017/06/DA25.4 (Revision G) – Shadow Elevations-June 21 2-3pm Oikos Architects 29 March 2019 2017/06/DA25.5 (Revision G) – Shadow Elevations – NE No. 1/16 Oikos Architects 29 March 2019 19824 – Level & Detail Plan GK Wilson & Associates 22 March 2019 D01 (Revision D) – Basement Stormwater Drainage Plan Smart Structures Australia 28 March 2019 D02 (Revision D) – Ground Floor Stormwater Drainage Plan Smart Structures Australia 28 March 2019 D03 (Revision D) – Stormwater Drainage Plan and Details Smart Structures Australia 28 March 2019 C00 (Revision C) – Cover Sheet, Locality Plan & Drawing Schedule Smart Structures Australia 1 April 2019 C01 (Revision D) – Civil Works Layout Plan Smart Structures Australia 28 March 2019 C02 (Revision B) – Typical Cross Sections and Details Smart Structures Australia 28 March 2019 C03 (Revision B) – Swept Path Diagrams Smart Structures Australia 28 March 2019 C03.5 (Revision A) – Swept Path Diagrams Sheet 2 Smart Structures Australia 1 April 2019 C04 (Revision D) – Drive Way Long Sections Sheet 1 Smart Structures Australia 28 March 2019 C05 (Revision C) – Drive Way Long Sections Sheet 2 Smart Structures Australia 28 March 2019 C06 (Revision C) – Drive Way Long Sections Sheet 3 Smart Structures Australia 28 March 2019 C07 (Revision C) – Drive Way Long Sections Sheet 4 Smart Structures Australia 28 March 2019 Document Reference Prepared by Date Landscape Plan Carolyn Travers Garden Design 20 March 2019 Geotechnical Letter Morrow 31 March 2019 Arboricultural Root Mapping Report Arbor Skills 2 April 2019 BASIX Certificates No. 911697S_04 and 911755S_02 Oikos Architects 9 April 2019 1. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the full and final agreed amount of $3,000.00. 2. The Applicant's clause 4.6 request, prepared by Burrell Threlfo Pagan and dated April 2019, for a variation of the Floor Space Ratio development standard under clause 4.4(2B)(b)(ii) of the Leichhardt Local Environmental Plan 2013 and a copy of which is included at Annexure "B", is upheld. 3. The appeal is upheld. 4. Development Application No. D/2018/208 (as amended) for the demolition of the existing attached dwellings and construction of two attached dwellings with basement garages, boundary adjustment and associated works on land identified as Lot A in Deposited plan 383726 and Lot B in Deposited Plan 383726, and known as 18-20 Rose Street, Birchgrove, be approved subject to the conditions included at Annexure "C". ………………………. Peter Walsh Commissioner of the Court Annexure A Part 1 (13.1 MB, pdf) Annexure A Part 2 (12.9 MB, pdf) Annexure B (960 KB, pdf) Annexure C (237 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: 30 April 2019