Canyon High Pty Ltd v Inner West Council

[2021] NSWLEC 1371

Land and Environment Court

New South Wales

Medium Neutral Citation:	Canyon High Pty Ltd v Inner West Council [2021] NSWLEC 1371
Hearing dates:	Conciliation conference on 21 June 2021
Date of orders:	24 June 2021
Decision date:	24 June 2021
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	See [12] of Judgment
Catchwords:	APPEAL – development application – boarding house – clause 4.6 requests – conciliation conference – agreement reached – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 and 8.10 Environmental Planning and Assessment Regulation 2000, cll 49 and 55 Land and Environment Court Act 1979, ss 34 Leichhardt Local Environmental Plan 2013, cll 4.3A, 4.4 and 4.6 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 14, 26, 29, 30 and 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007, cll 85, 86, 87 and 101 State Environmental Planning Policy No 55— Remediation of Land, cl 7
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	Canyon High Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: D Loether (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) Inner West Council (Respondent)
File Number(s):	2020/278687
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a boarding house on land described as part Lot 35 Section 4 DP 1162, Lot 36 Section 4 DP 1162, Lot 37 Section 4 DP 1162, Lot 38 Section 4 DP 1162 and Lot 39 Section 4 DP 1162. The land is known as 124 James Street, Leichhardt (the Land).

2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

4. The appeal had been listed for hearing on 21 and 22 June 2021. However, on 18 June 2021 at the parties’ request the hearing was adjourned and the appeal listed for a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 21 June 2021. I presided over the conciliation conference.

5. On 18 June 2021 an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 18 June 2021 and is supported by a Jurisdictional Statement provided by the parties on the same date. The agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000(EPA Regulation) to grant leave to the applicant to amend the DA, for the applicant’s written cl 4.6 requests to vary the minimum landscaped area and floor space ratio development standards to be upheld and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

6. In broad terms, the amendments move the whole of the building to the north by 200 mm thereby increasing the setback to the south to 7.85 m to the wall line and 6.35 m to the edge of the balconies. Stair 4 has been deleted and additional deep soil landscaping will now be provided along the southern boundary. The eastern elevation has been amended to include a 1.5 m high fence to the west and a 1.2 m high fence to the north. There have been other changes made to the bulky waste area, manager’s room, courtyard and communal open space. I am satisfied that the proposed amendment to the DA is within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same.

7. The amended plans now relied upon resolve the Council’s merit concerns subject to the imposition of appropriate conditions of consent.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

General

1. The applicant is the owner of the Land and is able to make the DA in accordance with cl 49 of the EPA Regulation.

2. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

Leichhardt Local Environmental Plan 2013

1. The proposed development is for the purpose of a boarding house. The Land is within Zone R1 General Residential under the Leichhardt Local Environmental Plan 2013 (the LEP). Development for the purpose of a boarding house is permissible with development consent on land within that zone.

2. In determining the DA, I have had regard to the objectives of the R1 General Residential zone in the LEP.

3. The proposed development does not comply with the applicable development standards in the LEP relating to minimum landscaped area (cl 4.3A(3)(a)(ii)) and floor space ratio (cl 4.4(2)). The proposed development otherwise complies with the relevant provisions of the LEP.

Contravention of minimum landscaped area

1. Clause 4.3A(3)(a)(ii) of the LEP sets a minimum landscaped area requirement of 20% of the site area which equates to a requirement for the Land of 174.64 m². The DA proposes 127.5 m² or 14.6% of the site area. A clause 4.6 request has been prepared seeking a variation to the minimum landscaped area requirement by HDC Planning dated 27 May 2021.

2. The non-compliance with the landscaped area arises because part of the area of the Land which is to be landscaped is situated above basement carparking. The depth of soil between the excluded landscaped areas and the roof of the basement carparking is between 1.3 m and 5.6 m. The Leichhardt Development Control Plan 2013 (DCP) includes a requirement at Control C17 of clause C1.12 that a landscaped area over a podium or basement must be capable of accommodating trees “up to” 2 m in height. The parties’ experts agree that the proposed soil depth of between 1.3 m and 5.6 m is capable of supporting trees to a height of 4 to 8 m. The excluded landscaped areas will therefore operate in an identical fashion to other landscaped areas on the Land which are included within the landscaped area calculation.

Contravention of the maximum floor space ratio

1. The DA does not comply with the maximum floor space ratio (FSR) requirements under cl 4.4(2) of the LEP, which provides a maximum permitted FSR of 0.5:1. The DA (as amended) has a FSR of 1.11:1. A clause 4.6 request has been prepared seeking a variation to the FSR control by HDC Planning dated 27 May 2021.

2. The non-complying FSR would not be perceivable from the public domain and does not have any adverse impacts on the streetscape presentation. The location of the Land, with three street frontages creates an additional unbuildable void area around the Land.

Consideration of cl 4.6 requests

1. For the reasons outlined in each written clause 4.6 request, I am satisfied that the development is consistent with the relevant objectives of each development standard and that there are sufficient environmental planning grounds to support the variations proposed to the minimum landscaped area and FSR standards in the present circumstances. 

2. Accordingly, as the objectives of the standard in each case are achieved despite the breach and the applicant’s written requests have adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP and I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i), it follows that strict compliance with the development standards in cll 4.3A(3)(a)(ii) and 4.4(2) of the LEP is both unreasonable and unnecessary.

3. I also accept that the development will be in the public interest because the development is also consistent with the objectives of the zone in which the development is proposed despite the breaches of  cll 4.3A(3)(a)(ii) and 4.4(2) of the LEP. In that regard, the proposed development:

1. introduces an affordable housing option to the locality;

2. introduces an alternative housing type to the locality which increases the variety with regard to type and density;

3. is located in an accessible location;

4. complements the style, orientation and pattern of surrounding development; and

5. has been designed to respect the amenity of residents and neighbouring residents with reference to visual and acoustic amenity and privacy.

4. For all those reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose.

5. The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the FSR or height standards does not raise any matter of significance for State or regional environmental planning given the nature of the development and there is no public benefit in maintaining the standards on the facts of this case.

State Environmental Planning Policy No 55 – Remediation of Land

1. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land requires a consent authority to consider the contamination and remediation of land when determining a development application.

2. A contamination site investigation was undertaken by Environmental Consulting Services Group dated 22 May 2020 on behalf of the Applicant to investigate the likelihood of the presence of contamination in the Land. Based on the assessment undertaken, the Land is considered suitable for high-density residential development.

State Environmental Planning Policy (Building Sustainability Index) BASIX 2004

1. The Applicant has provided a BASIX Certificate (Certificate Number 1107731M_02) prepared by Certified Energy dated 1 June 2021 to accompany the latest amended plans (Issue H) dated 26 May 2021.

State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)

1. The Land is located immediately adjacent to a rail corridor and cll 85 and 86 of the Infrastructure SEPP each require the DA to be referred to the rail authority for the rail corridor and for the consent authority to take into consideration any response received.

2. The DA was referred by the Council to Sydney Trains and, on 18 September 2020, Sydney Trains granted concurrence to the DA subject to conditions of consent. Those conditions have been included in the proposed conditions of consent.

3. Clause 87 of the Infrastructure SEPP applies to development for residential purposes that is on land in or adjacent to a rail corridor and which the consent authority considers is likely to be adversely affected by rail noise or vibration. Before determining a development application for development to which cl 87 applies, the consent authority must take into consideration any guidelines that have been issued by the Secretary for the purposes of the clause and published in the Gazette. In addition, as the development is for the purposes of residential accommodation, cl 87(3) provides that the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the noise levels specified in that clause are not exceeded.

4. An acoustic assessment has been prepared by PKA Acoustic Consulting dated 11 June 2020 (Ref 11813 R01v2) on behalf of the Applicant to consider the impacts associated with rail infrastructure. Its recommendations have been adopted in the development design.

5. The Land has a frontage to a classified road being Darley Road and cl 101 of the Infrastructure SEPP therefore also applies to the DA. A traffic assessment has been undertaken by Motion Traffic Engineers dated February 2021 (Ref N206353A Version 1b) which demonstrates that the DA does not impact on the efficiency and operation of Darley Road. Direct access to Darley Road is not proposed. In fact, the DA will remove direct access to Darley Road.

State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Rental Housing SEPP)

1. As the Land is within Zone R1 General Residential under the LEP, the Affordable Rental Housing SEPP applies to the Land: cl 26 Affordable Rental Housing SEPP.

2. Clause 30 of the Affordable Rental Housing SEPP provides that a consent authority must not consent to development to which the clause applies unless it is satisfied of each of the matters set out in that clause. In this regard I am satisfied that:

1. the DA has more than 5 boarding rooms and one communal living room (cl 30(1)(a));

2. no boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres (cl 30(1)(b));

3. the boarding rooms have been designed to accommodate no more than 2 lodgers (cl 30(1)(c));

4. each boarding room is provided with private bathroom and kitchen facilities (cl 30(1)(d));

5. the boarding house proposes more than 20 lodgers and therefore a boarding room has been provided for the boarding house manager (cl 30(1)(e));

6. at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. The DA makes provision for a total of 6 bicycle spaces and 6 motorcycle spaces (cl 30(1)(h)).

3. Clause 30A provides that a consent authority must not consent to boarding house development to which the clause applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. I am satisfied the design of the proposed development is compatible with the character of the local area.

Notification and Submissions from Objectors

1. Section 4.15(1)(d) of the EPA Act requires that in the determination of the DA, I must give consideration to any submissions made in relation to the DA.

2. The DA was notified to surrounding residents from 13 August 2020 to 3 September 2020. A total of 35 submissions were received and I have had regard to those submissions.

3. The Amended DA was renotified to the surrounding residents who had previously made a submission. Thirteen new submissions were received.

4. At the site inspection oral evidence was given by two local residents, Mr Justin Bedingfield and Ms Linda Seitz.

5. Mr Bedingfield expressed concern about what he believes is an oversupply of boarding house development in the area and about the likely impacts of the proposed development on parking and traffic congestion. He also believes the proposed development is unattractive and out of character with the development in the local area. Mr Bedingfield also expressed concerns about a number of amenity issues including the lack of a designated smoking area within the development, the size of the rooms and solar access for some of the rooms.

6. Ms Seitz gave evidence from the unnamed lane behind the Land. Her main concern was in relation to parking, which she said was already difficult in the area, and traffic movements in the lane, especially on Thursday and Friday nights when customers of the nearby Dan Murphy’s store use the lane as a means of access. She said that several boarding house developments were taking place in the local area and that these would exacerbate the existing unsatisfactory parking and traffic arrangements, especially in the unnamed lane.

7. The Affordable Rental Housing SEPP provides in cl 14(2)(a) that a consent authority must not refuse consent to boarding house development to which the provision applies on parking grounds if at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom. The proposed development contains 29 self-contained boarding rooms and one self-contained manager’s room, making 30 rooms in total, and will provide 15 car parking spaces which the parties agree is sufficient to meet the needs of the proposed development. As the development provides 0.5 parking spaces for each dwelling, in accordance with cl 14(2)(a) of the Affordable Rental Housing SEPP, consent cannot be refused on parking grounds.

8. The Council submits, and I accept, that the amended plans that form part of the Joint Town Planning Report (Issue H) dated 26 May 2021 otherwise adequately address all submissions received from surrounding residents.

10. As I have decided to uphold the applicant’s written requests to vary the minimum landscaped area and FSR development standards and as I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

12. The Court orders that:

1. The Applicant’s written clause 4.6 request to vary the permitted floor space ratio pursuant to Clause 4.4(2) of the Leichardt Local Environmental Plan 2013 prepared by HDC planning dated 27 May 2021 is upheld.

2. The Applicant’s written clause 4.6 request to vary the minimum landscaped area pursuant to Clause 4.3A(3)(ii) of the Leichardt Local Environmental Plan 2013 prepared by HDC Planning dated 27 May 2021 is upheld.

3. The Applicant is granted leave to amend Development Application Number DA/2020/0587 and to rely on the following amended plans and documents as set out below:

Architectural Plans prepared by Drew Dickson Architects:

Drawing Number/Title	Revision
(i) Location Plan & Development Summary, Drawing No. A-0000 dated 26 May 2021	H
(ii) Site Analysis Plan, Drawing No. A-0001 dated 26 May 2021	H
(iii) Site Plan, Drawing No. A-0003 dated 26 May 2021	H
(iv) Demolition Plan, Drawing No. A-0021 dated 26 May 2021	H
(v) Basement Floor Plan, Drawing No. A-1000 dated 26 May 2021	H
(vi) Ground Floor Plan, Drawing No. A-1001 dated 26 May 2021	H
(vii) First Floor Plan, Drawing No. A-1002 dated 26 May 2021	H
(viii) Second Floor Plan, Drawing No. A-1003 dated 26 May 2021	H
(ix) Roof Plan, Drawing No. A-1004 dated 26 May 2021	H
(x) Building Elevations – Sheet 1, Drawing No. A-1200 dated 26 May 2021	H
(xi) Building Elevations – Sheet 2, Drawing No. A-1201 dated 26 May 2021	H
(xii) Sections – Sheet 1, Drawing No. A-1202 dated 26 May 2021	H
(xiii) Building Shadow Diagrams – Sheet 1, Drawing No. A-7500 dated 26 May 2021	H
(xiv) Building Shadow Diagrams – Sheet 2, Drawing No. A-7501 dated 26 May 2021	H
(xv) Area Calculation Plans, Drawing No. A-7601 dated 26 May 2021	H

Landscape Plans prepared by Zenith Landscape Designs:

Drawing Number/Title	Amended Revision
(i) Landscape Plan, Drawing No. 20-4175 LO1 dated 27 May 2021	C
(ii) Landscape Plan, Drawing No. 20-4175 LO2 dated 27 May 2021	C
(iii) Landscape Plan, Drawing No. 20-4175 L03 dated 27 May 2021	C
(iv) Landscape Plan, Drawing No. 20-4175 L04 dated 27 May 2021	C

Amended request for a variation in permitted floor space ratio pursuant to Clause 4.6 of the Leichardt Local Environmental Plan 2013 dated 27 May 2021.

Request for a variation to Minimum Landscaped Area pursuant to Clause 4.6 of the Leichardt Local Environmental Plan 2013 dated 27 May 2021.

BASIX Certificate prepared by Certified Energy (Certificate Number 1107731M_02) dated 1 June 2021.

4. The Appeal is upheld.

5. Development Application DA/2020/0587 for the demolition of existing structures and the construction of a boarding house comprising 29 x self-contained boarding rooms (including 2 accessible units), 1 x self-contained boarding house manager’s room, basement car park with 15 x car spaces (including 2 accessible car spaces), 6 x motorcycle spaces and 6 x bicycle spaces at 124 James Street Leichardt is approved subject to the conditions of consent set out at Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (406760, pdf)

Architectural Plans (6342960, pdf)

Landscape Plans (5381830, pdf)

Attachment 1 (99498, pdf)

Attachment 2 (11217, pdf)

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Decision last updated: 24 June 2021