200 Marion Properties Pty Ltd v Inner West Council

[2022] NSWLEC 1440

Land and Environment Court

New South Wales

Medium Neutral Citation:

200 Marion Properties Pty Ltd v Inner West Council [2022] NSWLEC 1440

Hearing dates:

Conciliation conference on 7 June 2022

Date of orders:

23 August 2022

Decision date:

23 August 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court Orders that:

1) The appeal is upheld.

2) Development Consent is granted to Development Application DA/2021/0110 for the demolition of all existing structures and redevelopment of the site to contain a three (3) storey mixed use development with basement and lower ground parking, retail shops and 17 apartments, landscaping and associated site works at 194-202 Marion Street, Leichhardt, subject to the conditions of consent at Annexure A.

3) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

Catchwords:

APPEAL – development application – mixed use development – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 50, 55, Sch 1

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cl 4.4, 4.4A, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 10

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 28, 30

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.119, 2.120

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

200 Marion Properties Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Solicitors:
S Patterson, Wilshire Webb Staunton Beattie (Applicant)
R Wilcher, Inner West Council (Respondent)

File Number(s):

2022/63306

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for a mixed-use development at 194-202 Marion Street, Leichhardt, which was refused on 9 November 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [14] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 June 2022, and continued by Online Court on various dates in July 2022. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 5 August 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amended development application seeks consent for the demolition of all existing structures and redevelopment of the site to contain a three-storey mixed-use development with basement and lower ground parking, retail shops and 17 apartments, landscaping and associated site works. The amendments included a reduction in the number of apartments and in the number of storeys.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement on the Jurisdictional Prerequisites, which sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents in the Amended Development Application filed on 4 August 2022 and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons that follow.

6. The development is for the purpose of retail premises and shop top housing, which are permissible in the B2 Local Centre zone in which the site is located, pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP).

7. The floor space ratio (FSR) development standard applicable to the site, pursuant to cl 4.4 of the LLEP, is 1:1. However, the proposed development benefits from cl 4.4A of the LLEP, which allows a FSR of 1.5:1 on the site if certain pre-conditions are met. I am satisfied that the maximum FSR of 1.5:1 applies, pursuant to cl 4.4A(3), on the basis that:

• The proposed development has an active street frontage, as required by cl 4.4A(3)(a), as, consistent with the definition in cl 4.4A(5), all floor space on the ground floor of the building facing the street is proposed for a purpose other than residential accommodation, apart from the residential lobby entry and a hydrant booster, which are permitted exceptions pursuant to s 4.4A(4).

• The proposed development meets cl 4.4A(3)(b) as it is a mixed use development, including residential accommodation.

• As required by cl 4.4A(3)(c), the proposed development is compatible with the desired future character of the area in relation to its bulk, form, and scale. Its streetscape presentation to each frontage enables it to reinforce its location on the corner of Marion Street and Foster Street, its siting is consistent with the building location zone control in the Leichhardt Development Control Plan 2013 (LDCP), its bulk has been sited in a manner that maintains amenity to the surrounding R1 General Residential zone, and its three storey form is smaller in scale than the Leichhardt Marketplace and is consistent with the vision for Marion Street in the character statement for the West Leichhardt Distinctive Neighbourhood in the LDCP.

8. Nevertheless, the proposed development does not comply with the maximum FSR of 1.5:1. The development proposes a maximum gross floor area of 3,525.4m², equating to a FSR of 2.01:1. Based on the written request dated 22 July 2022, I am satisfied that development consent should be granted notwithstanding the contravention of the FSR development standard. The contravention above the maximum FSR of 1.5:1 results from the provision of additional car parking equating to an area of 559m², and an additional 310m² floor space above ground. In accordance with cl 4.6 of the LLEP, I am satisfied that:

• The written request adequately establishes sufficient environmental planning grounds that justify the breach by demonstrating that the breach allows the provision of additional car parking to absorb any additional car parking demand by the incidental use of the car park on the site for those using the sporting fields across the road, and allows the design of the building to present to the streetscape in a manner that reinforces its corner location. I note that the written request also relies on the public benefit of the relocation of the Sydney Water pipe as an environmental planning ground, however it does not demonstrate how the relocation justifies the additional floor space. Without a link between the environmental planning ground and the additional floor space, this ground does not justify the breach of the FSR development standard.

• The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance.

• For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard.

9. In relation to the state environmental planning policies that apply to the proposed development:

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. Based on the Statement of Environmental Effects dated February 2021, I have considered the Apartment Design Guide and the design quality of the development when evaluated in accordance with the design quality principles, as required by cl 28(2) of the SEPP 65.

• The site has frontage to Marion Street and Foster Street, which are both classified roads, and cll 2.119 and 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) apply. In accordance with cl 2.119, vehicular access is provided from Foster Lane, a road other than the classified road, and I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of cl 2.119(2)(c) and cl 2.120(3), the proposed development has been designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Acoustic Report dated 10 February 2021 that will ensure a suitable degree of amenity for residents and other occupants of the proposed development, including compliance with the LAeq levels in cl 2.120(3).

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land in a Stage 1 and Stage 2 Site Contamination Investigation Report prepared by Geo-Environmental Engineering. The report confirms that the site is suitable for the proposed development and no remediation is required.

• The site is located within the area identified as the Sydney Harbour Catchment pursuant to Part 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). I have considered the matters in Pt 10. The parties agree, and I accept, that the site is not located in proximity to the harbour or foreshore and is not visible from the harbour or foreshore. It will not negatively impact on the catchment, foreshore, waterways or islands of the Sydney Harbour.

10. In addition, the following prerequisites to the grant of development consent are satisfied:

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• The amended development application is accompanied by a statement of a qualified designer that verifies the design of the development, as required by cl 50(1A) and (1AB) of the EPA Regulation 2000.

11. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

12. In making the orders to give effect to the agreement between the parties, 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.

13. The Court notes:

1. Inner West Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending Development Application no. DA/2021/0110 (“development application”) to rely on the following documents:

1. Schedule of amendments prepared by Benson McCormack Architecture dated 20 June 2022.

2. Amended Architectural Plans prepared Benson McCormack Architecture dated 22 July 2022.

3. Design Verification Statement prepared Benson McCormack Architecture dated 3 August 2022.

4. Amended Landscape Plans prepared by Matthew Higginson Landscape Architecture Pty Ltd dated 20 June 2022.

5. Amended Stormwater Concept Design prepared by SGC dated 30 June 2022.

6. Proposed Stormwater Diversion Infrastructure Upgrade prepared by SGC dated 30 June 2022.

7. Structural Report prepared by Structural Link Pty Ltd dated 6 July 2022.

8. Revised cl. 4.6 variation request prepared by GAT & Associates dated 22 June 2022.

9. BASIX Certificate No. 1163999M_03 dated 21 June 2022.

10. NatHERS Certificate No. 0005698420 dated 21 June 2022.

2. The amended development application was uploaded to the NSW Planning Portal on 3 August 2022.

3. The Applicant has subsequently filed the amended development application with the Court on 4 August 2022.

14. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to Development Application DA/2021/0110 for the demolition of all existing structures and redevelopment of the site to contain a three (3) storey mixed use development with basement and lower ground parking, retail shops and 17 apartments, landscaping and associated site works at 194-202 Marion Street, Leichhardt, subject to the conditions of consent at Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

……………………….

J Gray

Commissioner of the Court

Annexure A (374176, pdf)

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Decision last updated: 23 August 2022