Appwam Pty Ltd v Inner West Council

[2024] NSWLEC 1026

Land and Environment Court

New South Wales

Medium Neutral Citation:

Appwam Pty Ltd v Inner West Council [2024] NSWLEC 1026

Hearing dates:

Conciliation conference on 22 December 2023

Date of orders:

31 January 2024

Decision date:

31 January 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is directed to file the amended development application the subject of Order 5 below within seven (7) days of the date of this Order.

(2) The applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $10,000.00 payable within 28 days.

(3) The appeal is upheld.

(4) The written request pursuant to cl 4.6 of the Ashfield Local Environmental Plan 2013 seeking a variation to the height of building standard of 9 metres under cl 4.3 of the ALEP prepared by Andrew Martin Planning dated 13 December 2023 is upheld.

(5) Development consent is granted to Development Application 2021/1367 for demolition of existing structures and construction of a residential flat building with 35 residential apartments including affordable housing at 55-63 Smith Street, Summer Hill legally defined as Lot 1 in DP 905473, Lot 1 in DP 796910 and Lot 13 in DP 560, subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – affordable housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Ashfield Local Environmental Plan 2013, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.11

Inner West Local Environmental Plan 2022, cl 1.8A

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

Environmental Planning and Assessment Regulation 2000, cll, 55,

Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy Amendment (Housing) 2023, Sch 7A

State Environmental Planning Policy (Housing) 2021, Div1 ss 16, 17, 18, Sch 7A

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

State Environment Planning Policy (Transport and Infrastructure) 2021, s 2.48

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30, Sch 1

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/26375

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an being an appeal against the refusal of Development Application DA2021/1367 for the demolition of existing structures and construction of a residential flat building with 35 residential apartments (including affordable housing), carparking and associated landscape works at 55-63 Smith Street, Summer Hill legally described as Lot 1 DP 905473, Lot 1 DP 796910 and Lot 13 DP 560 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 19 June 2023 and terminated by Commissioner Horton. At the request of the parties to the Court, a further conciliation conference was held on 22 December 2023. I have presided over the conciliation conference.

3. The respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) to the applicant amending Development Application DA/2021/1367 in accordance with the documents listed at Annexure A (amended application). I note that as the application was lodged prior to the commencement of the Environmental Planning and Assessment Regulation 2021, that the EPA Reg 2000 continues to apply pursuant to Sch 6, Pt 1.

4. At 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 for the amended application and granting development consent to the amended application subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owner’s consent accompanied the development application (Tab 2, Class 1 Appeal).

10. The development application was lodged to the respondent on 29 December 2021. The respondent notified the development application between 3 February 2022 to 24 February 2022. Twenty-two submissions were received which, in summary, raised concerns regarding:

• Scale and character;

• Setbacks and footpath widening;

• Environmental impacts such as contamination, flooding, heritage, overshadowing, trees, waste;

• Privacy;

• Traffic and parking;

• Property values;

• Loss of employment lands;

• Construction impacts including asbestos; and

• Retention of existing boundary walls, in particular along the eastern boundary.

11. The parties advise that the amended application was notified to objectors. One submission was received raising concerns about the brick colour and request for a 500mm setback of the front fence to the Smith Street footpath.

12. As the parties have reached agreement, the concerns raised have been considered by the consent authority. The parties are in agreement that the concerns raised have been addressed by the amended application, where possible. In particular, the parties have agreed to a condition of consent to provide a 500mm front fence setback to the footpath included at Annexure B (condition 2).

Ashfield Local Environmental Plan 2013

13. Pursuant to cl 1.8A savings provision of the Inner West Local Environmental Plan 2022, the Ashfield Local Environmental Plan 2013 (ALEP) applies to the amended application.

14. The site is zoned R3 Medium Density Residential. The proposed development for a residential flat building is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

15. Clause 4.3 Height of buildings applies to the site, with a maximum height of 9m. The amended application is 9.7m in height. The amended application seeks to contravene cl 4.3 pursuant to cl 4.6 Exceptions to development standards. The amended application is accompanied by an updated cl 4.6 written request prepared by Andrew Martin Planning dated 13 December 2023 to contravene the height development standard. The parties agree and I accept that the written request satisfies the provisions of cl 4.6.

16. Clause 4.4 Floor space ratio sets an FSR of 0.7:1. The amended application includes affordable housing in accordance with Div 1 In-fill affordable housing of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). Accordingly, an additional 0.5:1 FSR applies pursuant to s 17 of the Housing SEPP. I have considered the architectural plans prepared by Habitation Design + Interiors (architectural plans), Dwg D117 dated 29 November 2023. I accept the parties’ agreement that the amended application complies, with a proposed FSR of 1:1.

17. Clause 5.10 Heritage conservation applies as the site adjoins a heritage item and is in the vicinity of other heritage items and conservation areas. The parties agree and I accept with consideration of the Statement of Heritage Impact prepared by Archnex Designs dated December 2021 and the cl 4.6 written request that the provisions of cl 5.10 have been met.

18. Clause 5.21 Flood planning applies to the site. On the basis of the documentation accompanying the Class 1 Application, including the Flood Risk Management Advice prepared by Molino Stewart dated 17 December 2021 and Flooding Investigation prepared by Lyall & Associates dated 21 June 2022, I accept the parties’ agreement that the provisions have been satisfied.

19. Clause 6.1 Earthworks applies to the amended application. The parties agree and I accept, based on the Geotechnical Site Investigation Report prepared by Soilsrock dated 1 November 2021, that the provisions have been met.

State Environmental Planning Policy (Housing) 2021

20. The provisions of Div 1 In-fill affordable housing of Housing SEPP are engaged by the amended application. Pursuant to Sch 7A, the amendments to the Housing SEPP by State Environmental Planning Policy Amendment (Housing) 2023, published 14 December 2023, do not apply.

21. Through submissions received by the Court on 10 January 2024 and 23 January 2024, the parties agree and I accept that the provisions of Div 1 are met as follows:

• The development is permitted with consent, provides more than 20% of the development’s gross floor area (GFA) for affordable housing and the development is within an accessible area - cl 16.

• A minimum 50% of the GFA is for affordable housing (Dwg D117), allowing a bonus FSR of 0.5:1. The proposed affordable housing is enforced through conditions of consent at Annexure B (condition 62) - cl 17.

• The non-discretionary development standards have been met - cl 18.

• The amended application is compatible with desirable elements of the local area, including treatment of the roof form to reflect the heritage character of the local area – cl 19.

• Appropriate conditions of consent have been included at Annexure B to provide the required affordable housing (including management) in accordance with cl 21.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

22. Due to the lodgement date of the development application, the now repealed State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment (SEPP 65) applies to the proposed development in accordance with Schedule 7A (1)(a) of Housing SEPP

23. Clause 28 requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 of SEPP 65 and the Apartment Design Guide (ADG). Clause 30(2) of the SEPP 65 requires that adequate regard must be had to the same provisions.

24. Clause 28(2)(a) requires consideration of advice received from a relevant design review panel. The parties advise that the development application was considered by the Council’s Architectural Excellence and Design Review Panel and the advice has been considered in reaching agreement.

25. Noting that the parties agree that the SEPP 65 issues raised in the respondent’s Statement of Facts and Contentions have been resolved, the parties agree, and I accept that the amended application meets the provisions of SEPP 65 based on the SEPP 65 Design Verification Statement completed by the nominated qualified designer Joseph Panetta (registered architect No 9505) dated 22 January 2024 (submitted to the Court 23 January 2024).

State Environmental Planning Policy (Resilience and Hazards) 2021

26. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is supported by a Remedial Action Plan prepared by Foundation Earth Sciences dated May 2022 which sets out the required remediation for the site. Appropriate conditions of consent have been included at Annexure B. On this basis, the parties agree and I am satisfied that s 4.6 has been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies. In accordance with s 2.48, the parties advise that the relevant electricity supply authority was notified, who had no objection to the development application.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

28. The parties agree and I am satisfied that the amended application is accompanied by a BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Conclusion

29. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

30. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

31. 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.

32. The Court notes that the respondent has approved, as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the applicant amending Development Application DA/2021/1367 to rely upon the amended plans and documents at Annexure A:

Orders:

33. The Court orders:

1. The Applicant is directed to file the amended development application the subject of Order 5 below within seven (7) days of the date of this Order.

2. The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000.00 payable within 28 days.

3. The appeal is upheld.

4. The written request pursuant to cl 4.6 of the Ashfield Local Environmental Plan 2013 seeking a variation to the height of building standard of 9 metres under cl 4.3 of the ALEP prepared by Andrew Martin Planning dated 13 December 2023 is upheld.

5. Development consent is granted to Development Application DA/2021/1367 for demolition of existing structures and construction of a residential flat building with 35 residential apartments including affordable housing at 55-63 Smith Street, Summer Hill legally defined as Lot 1 in DP 905473, Lot 1 in DP 796910 and Lot 13 in DP 560, subject to the conditions in Annexure B.

S Porter

Commissioner of the Court

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Annexure A 

Annexure B 

Decision last updated: 31 January 2024