2628 Pty Ltd v Inner West Council

[2018] NSWLEC 1689

Land and Environment Court

New South Wales

Medium Neutral Citation:	2628 Pty Ltd v Inner West Council [2018] NSWLEC 1689
Hearing dates:	Conciliation conference on 5 November 2018
Date of orders:	21 December 2018
Decision date:	21 December 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION – hotel - conciliation conference - agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	2628 Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: G Green, Pikes & Verekers Lawyers (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/135443
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 3-storey hotel and a basement car park at 215-217 Parramatta Road, Haberfield. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 to 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 [7] 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 5 November 2018. 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application seeks the demolition of existing structures and the construction of a 3-storey hotel with 78 rooms and a basement car park.

4. As the presiding Commissioner, I was 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 Court Act). I formed this state of satisfaction for the following reasons:

1. The development works are for the purposes of a hotel, which is a permissible use in the B6 Enterprise Corridor zone pursuant to the Ashfield Local Environmental Plan 2013 (“ALEP 2013”).

2. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 10m, pursuant to cl 4.3 of the ALEP 2013. The proposed maximum height of 11.955m represents a contravention of 1.955m above the numerical standard. The contravention is confined to the centralised lift overrun and the building’s parapet and screen. The non-compliances of the parapet and screen are largely associated with the topography of the site. In accordance with cl 4.6(4)(a) of the ALEP 2013, I am satisfied that:

• The written request, lodged pursuant to cl 4.6 of the ALEP 2013, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard. These grounds were not found in that part of the request headed “5.0 Are there sufficient environmental grounds” but the request elsewhere demonstrated that the breach results from the topography of the land, and is confined to the lift overrun and the building’s parapet and screen, which are necessary for access (with respect to the lift) and to achieve a high quality sculptural form.

• The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance, and the breach of the standard has negligible adverse impact.

• 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 height development standard.

3. I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (“FSR”) development standard. The development standard establishes a maximum FSR of 1.5:1, pursuant to cl 4.4 of the ALEP 2013. The proposed development has a FSR of 1.56:1, which represents a breach of the maximum FSR by 4.06%, with additional floor space of 89.24m2. In accordance with cl 4.6(4)(a) of the ALEP 2013, I am satisfied that:

• The written request, lodged pursuant to cl 4.6 of the ALEP 2013, adequately establishes sufficient environmental planning grounds that justify the breach. These grounds were not found in that part of the request headed “5.0 Are there sufficient environmental grounds” but the request elsewhere demonstrated that the breach of the FSR results from a high quality built form, which accommodates a two storey scale where it adjoins the Haberfield Heritage Conservation Area and residential dwelling houses, then steps up to incorporate a three storey scale to Parramatta Road consistent with what is envisaged by the ALEP 2013, and also has elements on the south western corner (including a framed restaurant area) that ensures a relationship between the site and the adjoining public domain and an activation of the site’s prominent corner location. The sensitive design of the building to address each boundary appropriately and achieve a built form appropriate for its location justifies the 4.06% breach in 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.

5. 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 Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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.

7. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to amend the proposal in accordance with the amended documentation referred to in condition 1 of the conditions at annexure “A”.

2. The applicant is to pay the respondent’s costs thrown away pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $8,000 within 28 days.

3. The appeal is upheld.

4. Development application DA 2017.235.1 for Demolition of existing structures and construction of a 3-storey hotel with 78 rooms and a basement car park at 215-217 Parramatta Road, Haberfield is approved subject to the conditions at annexure “A”.

5. The Applicant’s written request pursuant to clause 4.6 of the Ashfield Local Environmental Plan 2013 (“ALEP”) seeking to justify the breach of the height development standard set out in clause 4.3 of ALEP and the floor space ratio standard set out in clause 4.4 of ALEP has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of ALEP. Consequently, the applicant’s written request is well founded and is upheld.

……………………….

Commissioner Gray

Annexure A (C)

Plans