Amine v Inner West Council
[2023] NSWLEC 1004
•06 January 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Amine v Inner West Council [2023] NSWLEC 1004 Hearing dates: Conciliation conference held on 26 September, 28 October, 16 November and 6 December 2022, final agreement filed on 19 December 2022 Date of orders: 06 January 2023 Decision date: 06 January 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA/2021/0438 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.
(2) The Applicant’s written request, pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 and 4.4A of the LLEP, is upheld.
(3) The appeal is upheld.
(4) Consent is granted to Development Application DA/2021/0438 (as amended) for the addition of a second floor, two-bedroom unit to an existing shop top housing development at 646 Darling Street, Rozelle, subject to the conditions of consent in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – shop top housing – cl 4.6 written request – floor space ratio – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 34
Leichhardt Local Environmental Plan 2013, cll 4.4, 4.4A, 4.6, 6.4, 6.11A
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category: Principal judgment Parties: Joseph G Amine (Applicant)
Inner West Council (Respondent)Representation: Counsel:
Solicitors:
P Shumack (Solicitor) (Applicant)
M Pearce (Solicitor) (Respondent)
HWL Ebsworth Lawyers (Applicant)
Inner West Council (Respondent)
File Number(s): 2022/204563 Publication restriction: Nil
JUDGMENT
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COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA/2021/0438 (the DA) by Inner West Council (the Respondent). The DA sought consent for alterations and additions to the existing building, including demolition of the existing roof and construction of a two bedroom dwelling at the third storey of the building, a new corridor from the rear lane and new stair access, at 646 Darling Street, Rozelle (the Site).
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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 26 September, 28 October, 16 November and 6 December 2022. I presided over the conciliation conference.
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During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
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Of particular note, the DA has been amended during the conciliation conference to resolve the contentions initially raised by the Respondent, which related to issues of excessive bulk and scale, exceedance of the Floor Space Ratio (FSR) development standard, incompatibility with the local character of the area in the context of a Heritage Conservation Area, privacy, safety and the provision of parking amongst other contentions.
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The design amendments include changes to the proposed roof form additions to improve the relationship of proposed work to existing heritage parapet and chimney structures, changes to improve the safety and security evident in the rear lane and changes to mitigate against cross viewing and privacy impacts.
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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 amended DA.
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There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
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In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
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The DA was publicly notified from 15 June to 29 June 2021. No submissions were received by the Respondent. Internal referrals were made to Council’s heritage, development engineering and building certification officers. The parties agree that the amended DA satisfactorily resolves the matters raised in these internal referrals. Accordingly, I am satisfied that s 4.15 of the EPA Act has been appropriately addressed.
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The parties agree, and I am satisfied, that the Leichhardt Local Environmental Plan 2013 (LLEP) remains the relevant local environmental planning instrument. The Site is zoned B2 Local Centre, and the proposed development - characterised as shop top housing development - is permissible with consent.
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The parties agree, and I am satisfied, that all principal development standards of the LLEP have been met by the DA, with the exception of cl 4.4, FSR, and cl 4.4A, Exception to maximum floor space ratio for active street frontages, which together establish a maximum FSR development standard of 1.5:1 for the Site.
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In such an instance, cl 4.6(3) of the LLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
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Clause 4.6(4) of the LLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
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Additionally, cl 4.6(4)(b) of the LLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.
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As required by cl 4.6 of the LLEP, the Applicant has provided a written request (prepared by ABC Planning and dated November 2022) seeking to vary the FSR development standard.
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The parties agree, and I am satisfied, that this written request adequately justifies the variance to the FSR development standard for the following reasons:
The amended DA exceeds the 1.5:1 FSR standard, proposing a maximum FSR of 1.64:1, which is 26.875sqm of gross floor area greater than the development standard, or a variation of approximately 9%.
Of note, the proposed alterations and additions have been amended to not be evident from Darling Street which ensures that the existing streetscape presentation and character along Darling Street within the Heritage Conservation Area is maintained.
The objectives of the LLEP Zone B2 Local Centre land use zone include providing range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area; to ensure that development is appropriately designed to minimise amenity impacts; to allow appropriate residential uses to support the vitality of local centre, and; to integrate suitable business, office, residential, retail and other development in accessible locations. I am satisfied the amended DA meets these objectives.
The objectives of cll 4.4 and 4.4A of the LLEP include ensuring that residential accommodation is compatible with the desired future character of the area in terms of building bulk, form and scale; minimising the impact of building bulk form and scale; ensuring that non-residential development is compatible with the desired future character of the area, and; providing FSR incentives for mixed use development that incorporates active street frontages at ground floor level in Zone B2 Local Centre. I am satisfied the amended DA meets these objectives.
The amended DA resolves the Respondent’s contentions, and in particular the upper-most storey of the building has been amended to minimise visual impacts and reduce the perceived scale of the proposal from Darling Street within the Heritage Conservation Area. I am satisfied the variation to the FSR development standard brings with it no material environmental impacts, any reduction in privacy or unreasonable overshadowing.
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Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to FSR and I find to uphold the written request.
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The parties agree, and I am satisfied, that pursuant to cl 6.4 of the LLEP, Stormwater management, the amended DA has been designed to minimise stormwater and runoff impacts. Agreed conditions of consent reflecting the objectives of cl 6.4 are imposed.
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The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.11A of the LLEP, Residential accommodation in Zone B1 and Zone B2. The DA, as amended, incorporates mixed residential and retail uses, has an active street frontage and is compatible with the desired future character of the local area, which satisfies the requirements of cl 6.11A.
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The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate (dated 6 December 2022) has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.
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Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
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The Court notes that:
Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the agreement of the Respondent.
The amended DA documents were uploaded to the NSW Planning Portal on 6 December 2022.
The Applicant has filed the amended DA with the Court on 19 December 2022.
Orders
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The Court orders that:
Leave is granted to the Applicant to amend Development Application DA/2021/0438 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.
The Applicant’s written request, pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 and 4.4A of the LLEP, is upheld.
The appeal is upheld.
Consent is granted to Development Application DA/2021/0438 (as amended) for the addition of a second floor, two-bedroom unit to an existing shop top housing development at 646 Darling Street, Rozelle, subject to the conditions of consent in Annexure A.
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M Pullinger
Acting Commissioner of the Court
Annexure A (243770, pdf)
Architectural Plans (3148494, pdf)
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Decision last updated: 06 January 2023
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