Anabia Pty Ltd v Inner West Council

[2022] NSWLEC 1489

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anabia Pty Ltd v Inner West Council [2022] NSWLEC 1489

Hearing dates:

Conciliation conference on 16 June 2022

Date of orders:

14 September 2022

Decision date:

14 September 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Consent is granted to Development Application DA 1315/2021 for the approval for a change of use to a recreational facility (Indoor), with associated carparking, in the basement areas, located within Strata Plan 88894, Lot 2 DP 1261043 and Lot 3 DP 1261043, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – change of use – recreation facilities (indoor) – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011 cll 4.3, 4.4, 4.6

Category:

Principal judgment

Parties:

Anabia Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor)Applicant)
R Wilcher (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Hicksons Lawyers (Respondent)

File Number(s):

2022/45989

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 2021/1315 (the DA) by Inner West Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to an 8297 m² parcel of land which is legally described as SP 88894, Lot 2 and Lot 3 in DP 1261043 and known as 32-72 Alice Street Newtown (the Site). The Site is rectangular in shape with a primary frontage of approximately 121.3m to Alice Street, a frontage of approximately 64.1m to Pearl St, a frontage of 61.1 m to Walenore Avenue and a rear frontage of 121.3m to Alice Lane.

3. The Site is currently occupied by a six storey mixed use development containing commercial tenancies at ground level, 203 apartments and one level of basement parking with vehicular access from Pearl Street, which was approved and constructed under an earlier development application (DA2012/225). The DA as submitted to Council sought consent for the change of use to a recreational facility (indoor) (a gymnasium) within the basement storage area for the apartments and bike storage for the development. No fitout is proposed as part of the application.

4. 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 16 June 2022, and at which I presided.

5. Prior to the conciliation conference, the parties reached 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.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 12 September 2022.

7. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. 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 power under s 4.16 of the EPA Act.

9. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [10] below.

Satisfaction of jurisdiction

10. The relevant jurisdictional matters in relation to the Marrickville Local Environmental Plan 2011 (MLEP) are:

1. The site is zoned B4 Mixed Use under the MLEP. All uses in that zone are permissible other than those uses which are prohibited. The definition of recreation facilities (indoor) includes a gym, which is an expressly permissible use in the B4 Mixed Use Zone.

2. The development applicant was accompanied by landowner’s consent.

3. Clause 4.3 to MLEP 2011 prescribes a maximum height for the site of 20 metres. No change is proposed to the existing height of the buildings of the site and therefore cl 4.3 is complied with.

4. Clause 4.4(1) of MLEP 2011 contains the objectives of the FSR controls, which are “(a) to establish the maximum floor space ratio, (b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas, and (c) to minimise adverse environmental impacts on adjoining properties and the public domain.

5. The maximum FSR for the site is 1.85:1. The proposal will increase the FSR on the site as the space within the basement has, to date, been excluded from the FSR calculation, whereas as a result of the proposal it will need to be included. The GFA on the site is 17,008.85m2, equating to an FSR of 2.05:1. The proposed development seeks to add 1,059m2 of GFA, equating to an FSR of 2.18:1. A variation request relating to the maximum FSR standard of 1.85:1 (prepared pursuant to Clause 4.6 of MLEP 2011) accompanied the development application. The Council considers, and the Court is satisfied, that the cl 4.6 written request relating to the development application seeking to justify the contravention of the FSR development standard is well founded and that compliance with the development standard is unreasonable and unnecessary because there are sufficient environment planning grounds, particular to the circumstances of the proposed development and the subject site to justify the departure in this case. Further, as the proposal is for a change of use of the existing building and there is no external physical change to the height, bulk or scale of the existing development, the development achieves on balance an appropriate environmental outcome having regard to all of the circumstances.

6. The DA was notified by the Respondent and no submissions were received.

Disposal of Proceedings

11. 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.

Orders

12. The Court orders that:

1. The appeal is upheld.

2. Consent is granted to Development Application DA 1315/2021 for the approval for a change of use to a recreational facility (Indoor), with associated carparking, in the basement areas, located within Strata Plan 88894, Lot 2 DP 1261043 and Lot 3 DP 1261043 subject to the conditions set out in Annexure ‘A’.

……………………….

L Sheridan

Acting Commissioner of the Court

45989.22 Annexure A (201290, pdf)

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Decision last updated: 14 September 2022