Arrage v Inner West Council

[2022] NSWLEC 1031

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arrage v Inner West Council [2022] NSWLEC 1031

Hearing dates:

Conciliation conference on 3 and 20 December 2021

Date of orders:

24 January 2022

Decision date:

24 January 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [37]

Catchwords:

DEVELOPMENT APPLICATION – shop top housing development – residential flat building – variation to height of building development standard – variation to floor space ratio development standard – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Land and Environment Court Act 1979, ss 34, 39

Marrickville Local Environmental Plan 2011, ss 4.3, 4.4, 4.6, 5.21, 6.1, 6.2, 6.20

State Environmental Planning Policy (Infrastructure) 2007, cll 85, 86

State Environmental Planning Policy No 55 – Remediation of Land

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

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

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Texts Cited:

Department of Planning, and Environment, Apartment Design Guide, (July 2015)

Category:

Principal judgment

Parties:

Michael Arrage (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Berveling (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/241357

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Inner West Council (the Respondent) of Development Application No 2021/0571 seeking alterations and additions to the approved shop top housing development, the subject of an existing consent DA/2015/129 (existing consent), to facilitate a new 2 bedroom unit in addition to floor plan layout changes and façade changes to the building at 62 Constitution Road Dulwich Hill.

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 3 December 2021, and at which I presided.

3. At the conciliation conference, the parties reached in-principle agreement on a number of matters in contention, subject to the resolution of certain issues which the parties’ advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters.

4. On 20 December 2021, I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 22 December 2021 in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. A further agreement was provided to the Court on 18 January 2022, and the parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and 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.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

• Marrickville Local Environmental Plan 2011;

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

• State Environmental Planning Policy (Infrastructure) 2007;

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

8. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. The site is located within the B4 Mixed Use Development zone identified in the Marrickville Local Environmental Plan 2011 (MLEP), in which shop top housing and commercial premises are permitted with consent, where consistent with the following objectives of the zone:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To support the renewal of specific areas by providing for a broad range of services and employment uses in development which display good design.

•  To promote commercial uses by limiting housing.

•  To constrain parking and restrict car use.

10. The height of building development standard at cl 4.3 of the MLEP, and floor space ratio development standard at cl 4.4 of the MLEP is exceeded, and the Applicant relies upon two written requests prepared in accordance with cl 4.6 of the MLEP, to justify the contravention authored by Mr Gerard Turrisi of GAT & Associates, dated December 2021.

11. The written request in respect of height exceedance (height request), and the written request in respect of Floor Space Ratio (FSR) exceedance are founded on virtually identical grounds, and so it is appropriate to consider the written requests together (collectively, the Requests).

12. The height request identifies the height standard at cl 4.3 of the MLEP to be 17m, which came into effect on the site under Amendment 4 to the MLEP on 11 December 2020.

13. Prior to 11 December 2020, no FSR or height of buildings standard applied to the site. The existing consent was for a development with a height of 22.3m and a FSR of 4.26:1.

14. The proposal now exceeds the height standard by a maximum of 4.4m, which is 900mm lower than the height of the development the subject of the existing consent, in a location above Level 4 that was not occupied by any built form.

15. The proposal exceeds the FSR standard of 3:1, applicable to the site by operation of cl 4.4(2) of the MLEP. The alterations and additions increase the Gross Floor Area (GFA) by 59.65m² from the development the subject of the existing consent to propose an overall GFA of 1,137m², expressed as a FSR of 4.49:1.

16. The Requests consider compliance with the height and FSR standards to be unreasonable or unnecessary because, firstly, the underlying objective or purpose of the relevant standards are achieved notwithstanding the non-compliance, and secondly because the underlying objective is not relevant to the particular development, and thirdly because the development standard has been virtually abandoned or destroyed.

17. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), an applicant need only establish one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]).

18. I am satisfied that the relevant standards are not relevant in the circumstances of this case for the grounds set out in the Requests. In summary, the existing consent is for development that exceeds standards that were applied to the site around 4 years after the existing consent was granted, which persists to this day, and which had the effect of superseding the advice on which the standards were developed.

19. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height and FSR standards as required by cl 4.6(3)(b) of the MLEP that may be summarised as follows:

• In respect of height, the proposal is below the approved maximum height the subject of the existing consent, and as there is no notable environmental consequence, with only minimal overshadowing resulting and no visual or acoustic privacy impact resulting.

• In respect of FSR, the exceedance results from the addition of a 2 bedroom unit that diversifies the mix of unit types, while achieving the communal open space required by the Apartment Design Guide (ADG), and repositioning bulk and scale away from the site’s closest residential neighbours in favour of the light rail corridor to the south west of the site.

20. Notwithstanding my conclusion at [18], I consider the proposed development to be consistent with the objectives of the relevant standards, and I am satisfied that the objectives of the B4 zone, set out at [9], are also achieved. In forming this opinion of satisfaction, I note the mixed use nature of the development provides ground floor commercial tenancies, is located immediately adjacent to light rail, and serves to constrain parking and restrict car use by providing no on site parking.

21. Accordingly, I am satisfied that the proposed development is in the public interest pursuant to cl 4.6(4)(a)(ii) of the MLEP, and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act.

22. For the reasons stated above, I find the Requests to vary the height and FSR standards should be upheld.

The MLEP is further considered

23. The site is not flood affected, and so the provisions of cl 5.21 of the MLEP do not apply. Likewise, the site is not identified on the Acid Sulfate Soils Map at cl 6.1(2) of the MLEP.

24. While I note the existing consent is for development comprising excavation, I have considered those matters at cl 6.2 of the MLEP in respect of earthworks. On the basis of the Stormwater Management Plans prepared by EZE Drainage Solutions Issue C, and the conditions of consent in respect of site works and geotechnical investigation, I am of the view that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

25. Relatedly, as the development constitutes development, and proposes excavation, adjacent to a rail corridor, cll 85 and 86 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) apply. I note the development application has been considered by Transport NSW who have provided comments that are incorporated in the agreed conditions of consent at Annexure A.

26. As the proposal is for a building of greater than 14m in height, cl 6.20 of the MLEP requires that consideration be given to whether the proposal exhibits design excellence. On the basis of the agreement between the experts in respect of those matters set out at subcl 6.20(4) of the MLEP, and amendments contained in architectural plans at Level 5, I accept the building conforms to the requirements of cl 6.20.

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

27. As the development application is for shop top housing comprising residential apartment development, the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply.

28. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the ADG.

29. Clause 30 precludes the grant of consent if an application does not demonstrate that adequate regard has been given to the design quality principles at Schedule 1, and the objectives specified in the ADG for the relevant design criteria.

30. Relatedly, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires an application for residential apartment development to be accompanied by a statement by a qualified designer, defined by cl 3 as a person registered under the Architects Act 2003, and in a form set out at cl 50(1AB) of the EPA Regulation.

31. The statement by the qualified designer must attest to certain things set out at cl 3A of the EPA Regulation, including attestations in respect of the design quality principles, and the objectives specified in the ADG for the relevant design criteria. A complying design statement prepared by the architect Mr Youssef El Khawaja (Arch Reg No 8933) accompanies the application.

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

32. I am satisfied that the application is accompanied by a BASIX certificate (Certificate No. 618378M_04 dated 8 December 2021), prepared by Greenworld Architectural Drafting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

33. I note here that consideration as to whether the land is contaminated within the terms of State Environmental Planning Policy No 55 – Remediation of Land was given prior to the grant of existing consent and is not a requirement of these proceedings.

34. 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.

35. 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.

Orders

36. The Court notes that:

1. The Applicant has amended the application with the consent of the Respondent Council, pursuant to cl 55 (1) of the EPA Regulation.

2. The Applicant has uploaded the amended application onto the NSW planning portal on 22 December 2021 comprising all the documents and plans set out in the attached Conditions of approval in Annexure A hereto.

3. The Applicant has filed the amended architectural plans (being the revision D plans) with the Court on 18 January 2022.

37. The Court orders that:

1. The Applicant’s clause 4.6 written request to vary the permitted floor space ratio pursuant to Clause 4.4 of the Marrickville Local Environmental Plan 2011 prepared by GAT & Associates dated December 2021 is upheld.

2. The Applicant’s clause 4.6 written request to vary the permitted height standard pursuant to Clause 4.3 of the Marrickville Local Environmental Plan 2011 prepared by GAT & Associates dated December 2021 is upheld.

3. The Applicant is granted leave to amend Development Application No. DA2021/0571 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure ‘A’.

4. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is pay the Respondent costs thrown away in respect of the amended plans in the sum of $6,900 within 28 days of the date of this order.

5. The appeal is upheld.

6. Development consent is granted to Development Application DA2021/0571 for alterations and additions to the approved shop top housing development to facilitate a new 2 bedroom unit on the western side of the top level with a balcony matching levels below and alterations to communal room and open space on level 5, at 62 Constitution Road, Dulwich Hill, subject to the conditions set out in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

Annexure A (370003, pdf)

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Decision last updated: 24 January 2022