Belle Living Pty Ltd v Inner West Council

[2022] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation:

Belle Living Pty Ltd v Inner West Council [2022] NSWLEC 1068

Hearing dates:

Conciliation conference on 4 February 2022

Date of orders:

10 February 2022

Decision date:

10 February 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The written request pursuant to cl 4.6 of the relevant Leichhardt Local Environmental Plan 2013 to vary the development standard in clause 4.3A, Landscaping, is upheld.

(2) The written request pursuant to cl 4.6 of the relevant Leichhardt Local Environmental Plan 2013 to vary the development standard in clause 4.4, Floor Space Ratio, is upheld.

(3) The appeal is upheld.

(4) Consent is granted for development application no. D/2021/0521, for the adaptive re-use of the existing buildings and alterations and additions to provide six dwellings, and associated works, including car parking, site remediation and street tree removal and replacement at 73-75 Beattie Street Balmain NSW, is granted consent, subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – adaptive reuse – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cl 2.3, 4.3A. 4.4, 4.6, 5.10, 6.2, 6.4 and 6.11

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Belle Living Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/249692

Publication restriction:

No

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 refusal of development application DA/2021/0521 seeking development consent for the adaptive re-use of the existing dwellings and alterations and additions to provide six dwellings, five of which have a secondary dwelling, and associated works, including car parking, site remediation and street tree removal and replacement (the Proposed Development) at 73-75 Beattie Street Balmain, legally described as Lots 20 and 21A in DP 11435 and Lots 26, 27, 28 and 29 in DP 2821(the Site).

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 has been held on 4 February 2022. I have presided over the conciliation conference.

3. The plans for the Proposed Development have been amended during the course of negotiations between the parties and further discussions at a s 34 conciliation conference (Amended Plans). The Amended Plans change the proposal by changing the portion of the development fronting onto Beattie Street Balmain in various ways including relocating the access to the basement parking, increasing the setback of the two most South-Eastern units and providing additional landscaping and changing the configuration of the same to relabel the areas, and remove the kitchens.

4. The Applicant seeks to rely on the Amended Plans for the purpose of entry into an agreement pursuant to s 34 of the LEC Act filed on 4 February 2022 and the Amended Plans form part of the conditions of consent and any other relevant documents.

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 and granting development consent to the development application subject to conditions.

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.

7. 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 to be the terms of cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied which I summarise below.

8. The LLEP is the relevant local environmental planning instrument that applies to the Site which is zoned R1 General Residential zone pursuant to LLEP and the Court notes that residential development in the form of a multi-residential and residential flat mix is permissible with consent in the R1 zone.

9. The Court, having regard to the objectives of the zone may approve the Amended Plans pursuant to cl 2.3(2) of the LLEP.

10. The parties agree that the Amended Plans do not comply with the provisions of cl 4.3A of the LLEP. Clause 4.3A permits a site coverage of 60% of the Site and requires landscaping of least 20% of the Site. In respect of site coverage, the clause permits site coverage of 574.44sqm whereas the Amended Plans propose coverage of 904.03sqm (94.43%), a variation of 57.37%. In respect of landscaping the clause requires 191.48sqm of landscaping whereas the Amended Plans propose 31.67sqm (3.34%), a variation of 83.46%.

11. The Applicant relies on a submission pursuant to cl 4.6 of the LLEP to justify why compliance with the cl 4.3A site coverage and landscaping development standard is unnecessary or unreasonable (Landscaping Written Request). The Landscaping Written Request has provided an assessment against the objectives of the zone and the development standard and has provided environmental planning grounds to support the divergence from the cl 4.3A development standard.

12. The parties agree that the Court should note that the proposed development is an adaptive reuse of the Site and that the non-compliance with this development standard relates to the existing built form and existing operation of the land. The parties agree that the Court can be satisfied that the Landscaping Written Request suitably justifies the nature of the non-compliance and why it is unreasonable or unnecessary to comply with the development standard at cl 4.3A of the LLEP.

13. The parties agree that the Amended Plans do not comply with the provisions of cl 4.4 of the LLEP. Clause 4.4(2B) of the LLEP permits a floor space ratio (FSR) on the Site of 0.7:1. On this basis the permissible gross floor area is 670.18sqm. The Amended Plans propose a gross floor area of 1,555sqm being an FSR of 1.624:1.

14. The Applicant relies on a submission pursuant to cl 4.6 of the LLEP to justify why compliance with the cl 4.4 FSR development control is unnecessary or unreasonable (FSR Written Request). The FSR Written Request has provided an assessment against the objectives of the zone and the development standard and has provided environmental planning grounds to support the divergence from the cl 4.4 development standard.

15. The parties agree that the Court should note that the proposal is an adaptive reuse of the Site and the exceedance in floorspace ratio largely resulting from the existing built form on the Site. The parties agree that the Court can be satisfied that the FSR Written Request suitably justifies the nature of the non-compliance and why it is unreasonable or unnecessary to comply with the development standard in cl 4.4(2B).

16. Clause 6.11 of the LLEP is entitled ‘Adaptive Reuse of Buildings in Zone R1’ and the parties agree that the Court needs to give consideration to the matters contained at cl 6.11(3). The Applicant has provided a statement responding to those matters in cl 6.11 including the objectives of the clause at 6.11(1) and the necessary considerations at cl 6.11(3). The Council is satisfied by the Applicant’s statement and the parties agree that the Court can be satisfied by the statement and reach an appropriate level of satisfaction in respect of its consideration of cl 6.11(3).

17. In respect of cl 5.10 of the LLEP, the parties are satisfied that the matters the subject of this clause have been dealt with by the provision of a Heritage Impact Statement prepared by Graham Hall dated June 2021 (HIS) and will be further resolved by conditions of consent which are listed at Contention B2-5 of the Statement of Facts and Contentions (SOFC) which the Applicant has considered and agreed to in their entirety. The Site is not an item of environmental heritage but is located within the Valley heritage conservation area. The HIS gives consideration to the location of the Site including its proximity to listed heritage items. The proposed conditions at contention B2-5 provide for conditions which require the retention, replace and maintenance of those parts of the Site that add to the nature of the heritage conservation area as well as require the archival recording of aspects of the existing structures which are not being maintained. The parties agree that the Court can be satisfied that the heritage conservation provisions in cl 5.10 have been satisfied by the HIS and conditions 2(a) and 20 of the conditions of consent.

18. In respect of cl 6.2 of the LLEP relating to ‘Earthworks,’ the parties agree that the Applicant submitted with the DA the following reports:

1. Remediation Action Plan prepared by JK Environments dated 11 June 2021 (RAP); and

2. Structural Feasibility Study prepared by ACOR Consultants Revision B dated 11 June 2021.

19. In response to the Amended Plans, the Applicant provided the Council with an amended Remediation Action Plan prepared by JK Environments dated 10 January 2022 (Amended RAP).

20. The Council has assessed these documents and is satisfied that they provide adequate information to satisfy Council in their assessment of those matters at cl 6.2(3) of the LLEP. The parties agree that the Court can reach a level of satisfaction in the same way as Council has in respect of cl 6.2(3) of the LLEP.

21. In relation to cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP55), the parties agree that the Court can be satisfied that consideration has been given to this matter and that consent can be granted. The RAP provides details of previous preliminary and detailed site investigations undertaken for previous development approvals and resolves that the Site is safe for the purpose proposed subject to compliance with recommendations. The Council has imposed a condition of consent requiring compliance with the Amended RAP which is not opposed by the Applicant. On this basis, the parties reiterate that the Court can be satisfied that due consideration has been given to cl 7 of the SEPP55.

22. In respect of cl 6.4 of the LLEP relating to ‘Stormwater Management’, the parties agree that the Applicant submitted stormwater plans with the DA. The Council raised insufficient information contentions in the SOFC at clause B3-6. The Applicant responded by providing the Council with updated stormwater plans which resolved the concerns of Council’s relevant expert. The parties submit that the Council have reviewed the stormwater plans and are satisfied that the Amended Plans and amended stormwater plans adequately resolve those matters at cl 6.4(3). The parties agree that the Court can reach the level of satisfaction to those matters at cl 6.4(3) in the same way the Council has.

23. The Amended Plans remove any concern with respect to the provision of secondary dwellings. On this basis the contentions raised in contention B1 is no longer an issue and State Environmental Planning Policy (Affordable Rental Housing) 2009 is not a relevant consideration.

24. The parties agree that the Court can be satisfied that an updated BASIX certificate dated 27 January 2022 has been issued to the Council in respect of the Amended Plans and the BASIX certificate complies with all the relevant requirements in the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

25. The parties agree that the Court can be satisfied that the requisite consideration have been given to the principles of the State Environmental Planning Policy (Infrastructure) 2007.

26. The parties agree that the Court can be satisfied that consideration has been given to the aims and objective of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

27. The original development application was notified in accordance with Council’s Community Participation Plans between 13 July 2021 to 12 August 2021. No objections were received. The Amended Plans were not deemed necessary to be renotified.

28. 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. I adopt the reasons given by the parties.

29. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3A of the LLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

30. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.4 of the LLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

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:

1. That Inner West Council as the relevant consent authority has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the Development Application D/2021/0521, the subject of these proceedings, in the following amended plans and detail:

Plans/drawings	Revision	Prepared by			Dated
DA101	A	Environa Studio			17/12/2021
DA102	A	Environa Studio			17/12/2021
DA103	A	Environa Studio			17/12/2021
DA104	A	Environa Studio			17/12/2021
DA105	A	Environa Studio			17/12/2021
DA110	A	Environa Studio			17/12/2021
DA120	A	Environa Studio			17/12/2021
DA121	A	Environa Studio			17/12/2021
DA130	A	Environa Studio			17/12/2021
DA131	A	Environa Studio			17/12/2021
DA132	A	Environa Studio			17/12/2021
DA133	A	Environa Studio			17/12/2021
DA134	A	Environa Studio			17/12/2021
DA135	A	Environa Studio			17/12/2021
DA980	A	Environa Studio			17/12/2021
LP00-06	B	John Lock & Associates			12/01/2022
BASIX Certificate No.			Dated
1211438M_2			27 January 2022

2. The Respondent has uploaded the application to the NSW Planning Portal on 27 January 2022; and

3. The Applicant has subsequently filed the amended plans on 4 February 2022.

Orders:

33. The Court orders:

1. The written request pursuant to cl 4.6 of the relevant Leichhardt Local Environmental Plan 2013 to vary the development standard in clause 4.3A, Landscaping, is upheld.

2. The written request pursuant to cl 4.6 of the relevant Leichhardt Local Environmental Plan 2013 to vary the development standard in clause 4.4, Floor Space Ratio, is upheld.

3. The appeal is upheld.

4. Consent is granted for development application no. D/2021/0521, for the adaptive re-use of the existing buildings and alterations and additions to provide six dwellings, and associated works, including car parking, site remediation and street tree removal and replacement at 73-75 Beattie Street Balmain NSW, is granted consent, subject to the conditions contained at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (336926, pdf)

Architectural Plans (13233030, pdf)

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Decision last updated: 10 February 2022