Land and Environment Court New South Wales Medium Neutral Citation: Belle & Lily Pty Ltd v Inner West Council [2020] NSWLEC 1105 Hearing dates: Conciliation conference held on 14 February 2020 Date of orders: 10 March 2020 Decision date: 10 March 2020 Jurisdiction: Class 1 Before: Smithson C Decision: Refer to orders at [15] Catchwords: DEVELOMENT APPLICATION – multi-dwelling development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Belle & Lily Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: A Cowper (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 118721/2019 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against Inner West Council's deemed refusal of Development Application No DA2018/00564 (the application) for demolition of existing structures and construction of multi-dwelling housing and a residential flat building (RFB) with basement car parking at 15-21 Barwon Park Road, St Peters (the site). 2. The site has frontage to both Crown Street and Barwon Park Road. Each street has a distinct and different character. A 9.5m height applies to the site at 13 and 13A Barwon Park Road. These sites all have dual street frontage. An 11m height limit applies to 2-6 Crown Street which also has frontage to both roads. Further north, the height increases to 17m and then 20m. 3. The parties worked together to address the matters raised in the Council's Statement of Facts and Contentions, with the applicant preparing revised plans. 4. The revised plans that are now the subject of the application propose demolition of existing structures and construction of a 3 storey multi-dwelling development comprising 4 terraces and a 3 storey RFB comprising 8 units with rooftop terrace, all over basement car parking for 16 cars. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference at which the parties agreed that the amended design addressed the Council's contentions. 6. Accordingly, an agreement under s 34(3) of the LEC Act was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). 8. The proposed uses are permissible with consent in the Residential R1 zone in which it is located pursuant to the provisions of the Marrickville Local Environmental Plan 2011 (the LEP). 9. The applicant provided two cl 4.6 variation requests to vary the development standards at LEP cl 4.3 Height of Buildings and cl 4.4 Floor Space Ratio (FSR). In this regard the proposed maximum height is 12.749m relative to a maximum permissible height of 9.5m (a 34.2% variation) whilst the FSR is 1.33:1 relative to a maximum permissible FSR of 0.85:1 (a 56.7% variation). 10. The requests accord with the amended plans. I have reviewed the requests in accordance with the requirements of cl 4.6 and am satisfied that: 1. The written requests demonstrate that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development; cl 4.3(a) of the LEP; 2. The written requests adequately establish sufficient environmental planning grounds that justify the breach of the standards; cl 4.6(3)(b) of the LEP; 3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of the LEP are met; 4. For the reasons outlined in the written requests, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R1 General Residential zone and the Height of Buildings and Floor Space Ratio development standards. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are also met; 5. Pursuant to cl 4.6(5), I am satisfied that the proposal does not raise any matter of significance for State or regional development; and 6. As the states of satisfaction required by cl 4.6 of the LEP have been reached, there is therefore power to grant development consent to the proposed development notwithstanding the breach of the controls. 1. In summary, that satisfaction is based on the following information contained in the cl 4.6 requests and advanced by the parties in support of the variations to the height and FSR standards: 1. The height, bulk and scale of the development has been specifically tailored to respond to the unique features of the site, which has 2 street frontages and tapering narrower components, and to relate to the scale and form of the surrounding development. In this regard, a 3 storey RFB is proposed on the eastern side of the site which is compatible with the 4 storey RFB building at 23-29 Barwon Park Road and the 2 storey development at 13 and 13A Barwon Park Road. The depth of the RFB matches the depth of the RFB at 23-29 Barwon Park Road. Four terrace style dwellings are then proposed on the western side of the site that are compatible with the setbacks, scale and depth of terrace style housing along Crown Street; 2. Barwon Park Road is undergoing transition in its character with dwelling houses and industrial buildings being replaced by 3 and 4 storey RFBs. The building height controls in the Marrickville Development Control Plan 2011 do not reflect the emerging character of the precinct nor do they reflect the heights permitted under the LEP. 3. The 4 terrace dwellings fully comply with the height limit however, a variation to the height limit is proposed for the lift overrun and stair access to the roof top terrace and the roof over the access to the lift and stairs. Other elements, including the balustrade around the roof top open space, also exceed the height limit. 4. The proposed building's height, bulk and scale is therefore consistent with the existing character of Crown Street and the emerging character of Barwon Park Road, notwithstanding the proposed variations in that: 1. The street wall height is only marginally higher than the height limit and is consistent with the street wall height of the adjoining building at 23-29 Barwon Park Road and 1.7m lower than the ridge height of the semi-detached dwellings at 13 and 13A Barwon Park Road. 2. The lift overrun and balustrade of the rooftop terrace are setback from the street wall such that there will be limited visibility of the non-complying elements from the public domain. 3. The height complies with the 14m height control that applies to the site at 23-25 Barwon Road. 1. The adjoining properties will receive adequate access to the sky and sunlight despite the variations proposed. In this regard, the existing building on the site is over 2m lower than the maximum height permitted on the site. Any new building to the maximum height will therefore result in additional shadowing but what is proposed is not unreasonable. Further, the majority of the additional shadow cast by the development will fall over Crown Street and Barwon Park Road and the development maximises the solar access to adjoining terraces. 2. The distribution of the floor space on the site into two buildings, separated by ground level open space, minimises the overshadowing over the private open space of the properties to the south and provides improved amenity for future occupants relative to a single building. Further, the solar access, visual privacy, view loss and acoustic impacts on neighbours and the public domain have been considered in the design, and removed or minimised. 3. The deep soil landscaping and landscaping is the same or exceeds that of sites in the vicinity. 4. The development will be compatible with the setbacks, scale and topography on both streets whilst the design is the result of providing a built form compatible with the site's setting and constraints. The height limit that applies to the entire site would otherwise provide an abrupt transition in height from the 14m height that applies to the adjoining site at 23-29 Barwon Park Road. The proposed height and scale allows for a more appropriate transition from the 4 storey height of development at 23-29 Barwon Park Road to the 2 storey height of development at 13 and 13A Barwon Park Road. 5. Compliance with the height limit on the western side of the site would result in an awkward transition between the 4 storey development at 23-25 Barwon Park Road (with a height of 13.2m) and the site. Compliance would result in a building that has a height of only 2 storeys and is lower in height than the development to both the north and the south. 6. The underlying objective of the height and FSR controls are achieved with an appropriate development on the site which is compatible with the context of the site and preserves the amenity and privacy of adjacent properties due to the design, location and configuration. 7. The Council has historically adopted a flexible approach to the implementation of the height standard. Given the proposed variations are consistent with other variations granted by Council, and do not have any unreasonable impacts, they should be granted. To comply with the standards would not achieve any more beneficial outcomes and would require the deletion of the rooftop communal open space which will offer amenity to RFB residents without adverse impacts. 8. The development incorporates diversity in dwelling styles and densities commensurate with development in the streets and the locality in which the site is situated. 1. In addition to being satisfied that the requirements of cl 4.6 of the LEP have been met, I also note that: 1. Owner's consent has been provided for the proposed development and no works are authorised under the consent to be carried out on any adjoining land. 2. The site is not identified as a heritage item nor is it located within a heritage conservation area pursuant to the LEP. 3. Required documentation has been submitted to satisfy cl 6.1 of the LEP in terms of acid sulphate soils and cl 6.2 dealing with site conditions for basement excavation. 4. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted by the applicant. 5. The requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and the associated Apartment Design Guide have been considered and addressed for the RFB component of the development, including the required design principles. 1. 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, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. Accordingly, the Court orders that: 1. Leave is granted to the applicant to rely on the following amended plans and material: Document Date Revision Prepared By Schedule of Amendments 24.01.20 - Environa Studio Architectural Plans 28.01.20 G Environa Studio (Drawing numbers 101-105, 110, 120-122, 130-132, 200, 210, 900-905, 910-916, 930, 980-981) Landscape Plans 28.01.20 A Conzept Landscape Architects (Sheets 1-3) Landscape Maintenance Strategy 28.01.20 - Conzept Landscape Architects Amended Clause 4.6 Request – Height of Building 28.01.20 - Sutherland & Associates Planning Amended Clause 4.6 Request – FSR 28.01.20 - Sutherland & Associates Planning Letter confirming parking compliance 24.01.20 - PDC Consultants Letter confirming BCA compliance 24.01.20 - Building Innovations Australia Letter confirming flood compliance 24.01.20 - ACOR Consultants BASIX Certificate 27.01.20 - Partners Energy Management Nathers Certificate 27.01.20 - Partners Energy Management 1. The applicant's written request under clause 4.6 of the Marrickville Local Environmental Plan 2011, prepared by Sutherland & Associates Planning for contravention of the maximum height development standard imposed by clause 4.3 of the Marrickville Local Environmental Plan 2011 dated 28 January 2020 is upheld. 2. The applicant's written request under clause 4.6 of the Marrickville Local Environmental Plan 2011, prepared by Sutherland & Associates Planning for contravention of the maximum floor space ratio development standard imposed by clause 4.4 of the Marrickville Local Environmental Plan 2011 dated 28 January 2020 is upheld. 3. The applicant shall pay the respondent's costs thrown away by reason of the amended development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $6,600.00 by 22 February 2020. 4. Consent is granted to development application No. 2018/00564 for the demolition of existing structures and the construction of a 3 storey multi-dwelling development comprising 4 dwellings and a 3 storey residential flat building comprising 8 units with roof top terrace, all over basement car parking accommodating 16 vehicle spaces including 2 accessible spaces, 6 bicycles spaces and 2 motorcycle spaces, and landscaping, subject to the conditions in Annexure 'A'. ………………………. Jenny Smithson Commissioner of the Court Annexure A (176 KB) ********** 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: 10 March 2020