Appwam Pty Ltd v Inner West Council

[2023] NSWLEC 1638

Land and Environment Court

New South Wales

Medium Neutral Citation:

Appwam Pty Ltd v Inner West Council [2023] NSWLEC 1638

Hearing dates:

Conciliation conference 26 September 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Demolition of existing structures and construction of a mixed-use development comprising of three levels basement parking for 29 cars (3 accessible), 12 motorcycles and 21 bicycles, a ground floor commercial/retail premises, café and a 59 room boarding house at 301-305 Liverpool Road, Ashfield (Lot 142 DP 738151, Lot 43 DP 711382 and Lot 3 DP 259081), subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use - boarding house - conciliation conference – agreement between the parties - orders

Legislation Cited:

Ashfield Local Environmental Plan 2013, cll 2.3, 4.3A, 4.3B, 4.4, 6.1, 6.3
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Environmental Planning and Assessment Amendment (Housing) Regulation 2021, Sch 1
Environmental Planning and Assessment Regulation 2000, cl 55
Environmental Planning and Assessment Regulation 2021, Sch 6, s 3
Inner West Local Environmental Plan 2022, cl 1.8A
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Affordable Rental Housing) 2009, Div 3, cll 29, 30, 30A
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, Sch 7A
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

Australian Standard, AS 2021-2000, August 2000

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
A Pickles SC (Applicant)
J Hewitt (Solicitor)(Respondent)

Solicitors:
Messenger & Messenger Solicitors (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/304245

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 appeal against the refusal of development application no DA/2021/0776 for the demolition of existing structures and construction of a mixed use development comprising a 67 room boarding house with manager’s residence, ground floor commercial premises, café and basement car parking (development application) at 301-305 Liverpool Road, Ashfield, legally known as Lot 142 DP 738151, Lot 43 DP 711382 and Lot 3 DP 259081 (subject site).

2. The proceedings were set down for a hearing on 26 September 2023. The parties agreed that following the joint conferencing of the experts, further changes to the plans and other documentation and agreed conditions of consent, that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 26 September 2023. I have presided over the conciliation conference.

4. The Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No DA/2021/0776 in accordance with the documents listed at [27] (amended application). The key amendments include:

• Reduction in boarding rooms;

• Juliette balconies added to the northern façade for increased façade articulation;

• Increase in window privacy measures;

• Internal reconfiguration on the ground floor relating to access;

• Further information on ventilation to the boarding rooms fronting Liverpool; and

• Updated documentation including revised architectural plans, plan of management, waste management, BASIX Certificate and further information on owners consent.

5. 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.

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

7. 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.

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

Jurisdictional Prerequisites

9. 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.

10. The development application was lodged on 26 August 2021. Therefore, the following former legislation applies:

• Environmental Planning and Assessment Regulation 2000 (EPA Regulation), pursuant to Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021;

• Ashfield Local Environmental Plan 2013, pursuant to cl 1.8A of the Inner West Local Environmental Plan 2022; and

• State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), pursuant to Sch 7A of the State Environmental Planning Policy (Housing) 2021.

11. I am satisfied that owners consent accompanied the development application.

12. The Respondent notified the development application between 7 September 2021 and 28 September 2021. Nine submissions were received as a result of the notification period, in accordance with Council’s bundle of documents. The written submissions have been considered by Council as the consent authority.

Ashfield Local Environmental Plan 2013

13. The subject site is zoned B4 Mixed Use pursuant to the Ashfield Local Environmental Plan 2013 (ALEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

14. Clause 4.3A Height of buildings of the ALEP applies, which allows a maximum height of 30m for residential flat buildings and shop top housing. Clause 4.3B permits a maximum height of 12m for parts of a building fronting Liverpool Road for a distance of 12m away from the road. Clause 29(2)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) contains a must not refuse provision for boarding house development, if the development does not exceed the maximum building height permitted for any building on the land. The parties agree and I accept on the basis of the architectural drawings prepared by Habitation Design + Interiors, dated 12 September 2023 (architectural plans), in particular DWG E119, that the amended application does not exceed the maximum height permitted by cl 29(2)(a) SEPP ARH and cll 4.3A and 4.3B of ALEP.

15. Clause 4.4 Floor Space Ratio (FSR) of the ALEP applies, which allows a maximum FSR of 3:1 on the site. Clause 29(1)(c)(ii) of SEPP ARH is a must not refuse provision on the basis of scale and density and provides an FSR bonus for preconditions that the development meets (residential flat buildings being permissible in the zone). The maximum FSR pursuant to cl 29(1)(c)(ii) is 3.6:1. The parties agree and I accept with consideration of the architectural plans DWG E121 that the amended application complies with the FSR at 3.57:1.

16. Clause 6.1 Earthworks applies to the proposed development. I have considered the accompanying Geotechnical Site Investigation Report prepared by Soilsrock dated 23 July 2021 and agree with the parties that the matters of cl 6.1 have been met.

17. Clause 6.3 Development in areas subject to aircraft noise applies to the subject site. I have considered the provisions of cl 6.3(3)(a)(b) and (c) and agree with the parties that the development satisfies the requirement to achieve indoor design sound levels in accordance with AS 2021-2000 through conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The proposed development is accompanied by a Detailed Site Investigation Contamination Assessment report dated 2 August 2021 and Remediation Action Plan dated 2 August 2021 both prepared by Soilsrock. The Remediation Action Plan has been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. Section 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021(SEPP Transport and Infrastructure) applies to the subject site as it has frontage to a classified road. In accordance with s 2.119(2), the parties agree and I am satisfied on the basis of the architectural plans and Acoustical Report prepared by Koikas Acoustics dated 13 August 2021 (acoustic report) that the amended application meets the requirements as:

1. Vehicular access is provided from The Esplanade;

2. The development itself will not generate smoke or dust that would impact the operation of the classified road; and

3. Appropriate recommendations have been included from the acoustic report in the conditions of consent at Annexure A to ameliorate impacts from the road to the proposed development and ventilation has been shown on the architectural plans.

State Environmental Planning Policy (Affordable Rental Housing) 2009

20. Division 3 Boarding Houses of SEPP ARH applies to the proposed development.

21. On the basis of the architectural plans, I agree with the parties that the amended application complies with the must not refuse standards within cl 29 except for cl 29(2)(e). I accept the agreement of the parties that the proposed car parking below the minimum is appropriate.

22. On the basis of the architectural plans and Plan of Management dated September 2023, I agree with the parties and am satisfied that the amended application meets cl 30 Standards for boarding houses as follows:

• Clause 30(1)(a) – A communal room is provided on level 8;

• Clause 30(1)(b) – The maximum gross floor area of boarding rooms is no more than 25sqm excluding the bathroom and kitchen facilities;

• Clause 30(1)(c) – The maximum number of occupants per room is no more than two;

• Clause 30(1)(d) – Each room is provided with bathroom and kitchen facilities in additional to the communal room facilities;

• Clause 30(1)(e) – A room is provided for the boarding house manager on level 1;

• Clause 30(1)(g) – The proposed ground floor is for commercial/retail purposes; and

• Clause 30(1)(h) – The minimum required spaces for bicycles and motorcycles has been provided within the basement.

23. Clause 30A Character of local area requires that the design of a development is compatible with the character of the local area. On the basis of the architectural plans and Statement of Environmental Effects prepared by Andrew Martin Planning dated August 2021, I accept the agreement of the parties that the amended application is compatible with the character of the area.

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

24. In accordance with Sch 1 of the Environmental Planning and Assessment Amendment (Housing) Regulation 2021 which amended the definition of ‘BASIX affected development’ to exclude boarding houses of more than 12 residents, a BASIX Certificate is not required. Notwithstanding, it is noted that the amended application has incorporated a revised BASIX.

Conclusion

25. 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.

26. 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.

27. 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.

28. The Court notes that the Respondent has agreed, as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No DA/2021/0776 to rely upon the following amended plans and documents:

Plan, Revision, and Issue No.	Plan Name	Date Issued	Prepared by
Architectural Plans
E 104 Issue E	Site Plan	12.09.23	Habitation Design + Interiors
E 105 Issue E	Basement – 3 Floor Plan	12.09.23	Habitation Design + Interiors
E 106 Issue E	Basement - 2 Floor Plan	12.09.23	Habitation Design + Interiors
E 107 Issue E	Basement - 1 Floor Plan	12.09.23	Habitation Design + Interiors
E108 Issue E	Ground Floor Plan	12.09.23	Habitation Design + Interiors
E 109 Issue E	Level 1 Floor Plan	12.09.23	Habitation Design + Interiors
E 110 Issue E	Level 2	12.09.23	Habitation Design + Interiors
E 111 Issue E	Levels 3-7	12.09.23	Habitation Design + Interiors
E 112 Issue E	Level 8	12.09.23	Habitation Design + Interiors
E 113 Issue E	Roof Plan	12.09.23	Habitation Design + Interiors
E 114 Issue E	North Elevation – Building A	12.09.23	Habitation Design + Interiors
E 115 Issue E	North Elevation – Building B	12.09.23	Habitation Design + Interiors
E 116 Issue E	West Elevation	12.09.23	Habitation Design + Interiors
E 117 Issue E	South Elevation – Building A	12.09.23	Habitation Design + Interiors
E 118 Issue E	South Elevation – Building B	12.09.23	Habitation Design + Interiors
E 119 Issue E	East Elevation	12.09.23	Habitation Design + Interiors
E 120 Issue E	Section	12.09.23	Habitation Design + Interiors
E 129 Issue E	Driveway Detail	12.09.23	Habitation Design + Interiors
E 133 Issue E	Materials and Finishes	12.09.23	Habitation Design + Interiors
E 136 Issue E	Amenity Diagram	12.09.23	Habitation Design + Interiors
E 137 Issue E	Kitchen and Laundry Details	12.09.23	Habitation Design + Interiors
E 138 Issue E	Laundry Details	12.09.23	Habitation Design + Interiors
E 139 Issue E	Door/Window Details	12.09.23	Habitation Design + Interiors

• Plan of Management prepared by Andrew Martin Planning – September 2023

• Amended Waste Management Plan prepared by Dickens Solutions – September 2023

• Amended BASIX Certificate No. 1228579M 02

• Owner’s Consent 25 September 2023

29. The Applicant filed the amended application and final s 34 agreement with the Court on 26 September 2023.

Orders

30. The Court orders that:

1. The appeal is upheld.

2. Demolition of existing structures and construction of a mixed-use development comprising of three levels basement parking for 29 cars (3 accessible), 12 motorcycles and 21 bicycles, a ground floor commercial/retail premises, café and a 59 room boarding house at 301-305 Liverpool Road, Ashfield (Lot 142 DP 738151, Lot 43 DP 711382 and Lot 3 DP 259081), subject to the conditions of consent at Annexure AA

S Porter

Commissioner of the Court

304245.22 (Annexure A)

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Decision last updated: 27 October 2023