Charles Street (NSW) Pty Ltd v Liverpool City Council

[2022] NSWLEC 1631

Land and Environment Court

New South Wales

Medium Neutral Citation:

Charles Street (NSW) Pty Ltd v Liverpool City Council [2022] NSWLEC 1631

Hearing dates:

Conciliation conference on 15 July, 11 and 25 August 2022, 8, 23 and 30 September 2022.

Date of orders:

15 November 2022

Decision date:

15 November 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by GAT & Associates dated September 2021, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008, to vary the carparking development standard in clause 7.3 of the Liverpool Local Environmental Plan 2008 is upheld.

(2) The Applicant’s written request prepared by GAT & Associates, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008, to vary the carparking development standard in clause 29(2)(e) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 is upheld.

(3) The Applicant is to pay the Respondent's costs thrown away by the amended development application referred to in paragraph 39, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(4) The appeal is upheld.

(5) Development consent is granted to Development Application No. DA-1092/2021, as amended, for the demolition of all existing structures and the construction of an eight (8) storey mixed use development with a commercial ground floor and café, and a fifty-two (52) room boarding house including manager’s room, landscaping and associated works at land identified as Lot 21 in DP 581273, known as 146-150 Terminus Street, Liverpool NSW 2170, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION: boarding house development – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 4.3, 4.4, 4.6, 5.10, 7.3, 7.5

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 28, 29, 30, 30A

State Environmental Planning Policy (Housing) 2021, Sch 7

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

State Environmental Planning Policy (Transport & Infrastructure) 2021, ss 2.119, 2.120, Div 5

Texts Cited:

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

Category:

Principal judgment

Parties:

Charles Street (NSW) Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/83431

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 Liverpool City Council (the Respondent) of development application DA-1092/2021 seeking consent for the demolition of all existing structures and the construction of an eight (8) storey mixed use development with a commercial ground floor and café, and a fifty-two (52) room boarding house including manager’s room, landscaping and associated works at Lot 21 DP 581273, known as 146-150 Terminus Street, Liverpool.

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 15 July 2022. I presided at the conciliation conference.

3. It is relevant to record here that, on the eve of the conciliation, Transport for NSW (TfNSW) identified an interest in the site as a site subject to road widening. By consent, TfNSW, participated in the conciliation conference.

4. The parties agreed on certain amendments that would permit the resolution of all issues in dispute, and the conciliation conference was adjourned to allow the Applicant to prepare amended plans. The conciliation conference was convened again on 11 August 2022, at which advised that the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, subject to the preparation of further documentation for which further adjournments were granted.

5. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 September 2022.

6. 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.

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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, including a written request made pursuant to cl 4.6 of the LLEP seeking a variation of the development standard for the car parking in the Liverpool City Centre.

8. The parties explained to me during the conference as to how the requirements of the Liverpool Local Environment Plan 2008 (LLEP) have been satisfied in order to allow the Court to make the agreed orders at [40].

9. The site is located in the B4 Mixed Use zone, according to the (LLEP), in which the nominated uses of commercial premises and boarding house development are permitted with consent, where consistent with the following objectives of the B4 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 allow for residential and other accommodation in the Liverpool city centre, while maintaining active retail, business or other non-residential uses at street level.

•  To facilitate a high standard of urban design, convenient urban living and exceptional public amenity.

10. The proposal complies with the maximum building height of 28m, identified on the Height of Buildings Map at cl 4.3(2) of the LLEP.

11. The applicable floor space ratio (FSR) standard for the site is 3.6:1, when the FSR bonus at cl 29(1)(c)(ii) of the State Environment Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) is applied to the FSR permitted by cl 4.4 of the LLEP. The proposed FSR is 3.4:1.

12. The site is not identified as a place of heritage significance and is not in a heritage conservation area. However, the site is in the vicinity of a heritage item, at No 2 Charles Street. I accept the conclusions of the Heritage Impact Statement prepared by Hyperion Design dated 8 September 2021 that the proposal will not adversely impact the heritage significance of the item, in accordance with cl 5.10 of the LLEP.

13. Clause 7.3 of the LLEP applies parking requirements on new development in a B4 zone. The ground level of the development proposes a total gross floor area of 280.2m², and a written request identifies two car spaces are required under subcl 7.3(2)(a). Only one car parking space is provided, resulting in a variation of one car parking space.

14. Furthermore, as a gross floor area of 1,929.2m² is proposed above the ground level, an additional 13 car parking spaces are required by cl 7.3(2)(b)(ii).

15. The development provides 5 car share spaces, 52 bicycle spaces for the boarding house, and 1 car parking space for the commercial tenancies.

16. The written request asserts compliance with the standard is unreasonable or unnecessary as the objective of the standard is achieved, notwithstanding the non-compliance.

17. The objective at cl 7.3(1) of the LLEP is:

(1)  The objective of this clause is to ensure that adequate car parking is provided for new or extended buildings on land in the Liverpool city centre that is commensurate with the traffic likely to be generated by the development and is appropriate for the road network capacity and proposed mix of transport modes for the city centre.

18. The written request considers the strict compliance with the numerical standard at cl 7.3 unreasonable or unnecessary for reasons stated as follows:

“The two commercial tenancies at ground level are likely to be a small retail and café premises. It is envisioned that due to the site location on the southern side of Terminus Street but within the CBD, these tenancies will generally only be serviced by local residents and workers, rather than visitors from further afield. Given the above, the single car space provided is likely to be allocated for staff only, and visitor spaces are not required.

While there is a technical shortfall from rounding upward (1.4 spaces required), the second car space is considered to be acceptably offset by the proximity of the site to public transport enabling alternative transport options. The site is within an accessible area by definition as it is 700m walking distance from the Liverpool Train Station and bus interchange, and closer still to bus stops along Hoxton Park Road, Macquarie Street and Scott Street. The variation of a single car space, which would have been allocated to staff rather than visitors, is acceptable given the highly accessible nature of the site and the likely catchment for the tenancies is the immediate, walkable locality.

The development will have a modest impact on the road network in the order of 3-4 vehicles an hour, per the assessment undertaken by The Transport Planning Partnership. As such, it is considered the variation of a single car parking space is not deemed to deviate from the objective in that adequate car parking is still provided that is commensurate with the traffic likely to be generated by the development.”

19. Next the written request relies upon environmental grounds that may be summarised as follows:

1. The site is accessible in that it is 700m from the Liverpool Train Station and bus interchange, enabling easy access to public transport networks.

2. Given the CBD environs, the customer and staff base are likely to be people living and working within the CBD and surrounding areas.

3. The Design Excellence Panel in their formal advice under PL-64/2021 questioned whether parking was warranted on the site at all given the proximity to the Liverpool Train Station and bus interchange.

4. The amenity for future residents and commercial staff and visitors would in no way be impacted through the variation compared with strict compliance with the standard.

20. The reasons set out in the written request satisfy me as to the matters required to be satisfied by cl 4.6(4)(a)(i). I am also satisfied as to those matters required to be satisfied by cl 4.6(4)(a)(ii) because of consistency with the objective of the standard, and because the proposal is also consistent with the objectives of the B4 zone, at [9]. In particular, I note the mix of compatible uses including residential accommodation and commercial tenancies. I also accept the reasons put forward in the design excellence statement, prepared by MDP and Leon & Co dated October 2022 to support a rationale as to the high standard of urban design and public amenity evident in the proposal. Finally, I accept that, notwithstanding the variation to the standard, residents will have access to electric car share vehicles with integrated booking system, motorcycle parking, and electric bicycles with charging stations.

21. Furthermore, I do not consider there to be any grounds on which the concurrence of the Secretary should not be assumed, in accordance with cl 4.6(5) of the WLEP.

22. Clause 7.5 of the LLEP precludes the grant of consent for the construction of a new building unless the consent authority forms the opinion that the development exhibits design excellence.

23. As stated at [20], the Applicant has prepared a design excellence statement to assist the Court in having regard to those matters required of it at subcl (3) so as to form an opinion as to whether the development exhibits design excellence.

24. I have formed an opinion that the proposed development exhibits design excellence for the reasons that follow.

25. I consider a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved because:

1. As stated at [9], the proposal is consistent with uses permitted in the zone and provides affordable rental housing in a highly urbanised location within walking distance of train and bus services, a major retail centre, tertiary education and central business district (subcl (3)(f)(i)) and (ii)).

2. While the proposal is not a BASIX-affected building, a BASIX assessment has been completed, internal layout and orientation maximises natural daylight and solar access to both habitable and communal areas, both externally and internally, while view from sun diagrams demonstrate that all residential flat buildings along Charles Street maintain solar access requirements of the Apartment Design Guide. Additionally, residents will have access to electric car share vehicles with integrated booking system, motorcycle parking, and electric bicycles with charging stations in each boarding room (subcl (3)(f)(vii) and (viii)).

26. I consider the form and external appearance of the proposed development will improve the quality and amenity of the public domain because:

1. Notwithstanding the highly constrained geometry of the site (subcl (3)(f)(iii)), boundary setbacks are sympathetic to future adjoining development, with additional setbacks at the upper-levels from the adjoining property to the west allowing for greater building separation (subcl (3)(f)(iv)) and an additional area for outdoor communal space.

2. The proposal addresses the particular heritage issues of the site, identified at [12], through a change in scale and material, utilising dry pressed face brick in a four-storey form addressing Charles Street (subcl (3)(f)(iii)).

3. The proposal incorporates the land reservation required by TfNSW, with an 8 storey street wall to Terminus Street, with a setback of 2.5m from the front boundary at Terminus Street from Ground floor to level 4, a further setback from levels 5 to 7 to allow for a material change, and a further setback at roof level which I accept is an appropriate arrangement of bulk and scale on a site with multiple frontages (subcl (3)(f)(v) and (vi)).

4. The ground floor of the proposed development includes a through-site lobby link allowing pedestrian access to and from both street frontages, benefitting passers-by and occupants alike, whilst also aiding in public domain activation while the impact on the public domain of vehicular access to basement parking, waste and the like is minimised by providing a car lift fronting Charles Street (subcl (3)(f)(ix) and (x))

27. Given the particular location of the site, the proposal imposes no detrimental impacts on view corridors, and does not overshadow those places identified at cl 7.5(3)(d) of the LLEP.

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

28. The Affordable Housing SEPP was repealed on 26 November 2021, replaced by State Environmental Planning Policy (Housing) 2021 (Housing SEPP). However, the Housing SEPP includes a savings provision, effective 14 April 2022, at Schedule 7, that precludes the operation of the Housing SEPP in respect of a development application made, but not yet determined, on or before the commencement date.

29. The proposal meets the development standards in clause 30 of the Affordable Housing SEPP, and I am satisfied, on the basis of agreement between the relevant experts and the onsite view, that the proposal as amended is compatible with the character of the local area, as required by clause 30A of the Affordable Housing SEPP.

30. The proposed development complies with the “must not refuse” development standards in cl 29 of the Affordable Housing SEPP, but for the parking standard as set out in clause 29(2)(e).

31. As the proposal includes 52 boarding rooms, the must not refuse provision at cl 29(2)(e) requires 26 car parking spaces to be provided. A total of 4 car parking spaces are proposed, in a private car share arrangement.

32. To the extent it is required, the variation of the “must not refuse” development standard has been supported by a written variation request in accordance with cl 4.6 of the LLEP. The written request provides an assessment against the objectives of the development standard and sets out grounds it asserts are sufficient environmental planning grounds to support the divergence from the development standard. The parties agree that the Court can be satisfied that the written request suitably justifies the nature of the non-compliance and why it is unreasonable or unnecessary to comply with the development standard, supported by environment planning grounds that satisfy me to the extent necessary in accordance with cl 4.6 of the LLEP.

State Environmental Planning Policy (Transport & Infrastructure) 2021 (Transport and Instructure SEPP)

33. The development application was referred to Endeavour Energy under Division 5 - Electricity transmission or distribution of the Transport and Infrastructure SEPP, and a response was received by Endeavour Energy on 28 November 2021 raising no concern with the development, subject to the imposition of appropriate conditions.

34. As the site has a frontage to Terminus Street, being a classified road within the terms of the Transport and Infrastructure SEPP, I note that practicable and safe vehicular access is provided off Charles Street, and I accept that no aspect of the proposed development will affect the safety, efficiency and ongoing operation of the classified road by reference to those matters at s 2.119(2)(b)(i)-(iii) of the Transport and Infrastructure SEPP.

35. Relatedly, on the basis of the DA Acoustic Assessment prepared by Acouras Consultancy dated 4 July 2022 (Acoustic Report), I am also satisfied that development is appropriately designed and includes measures to ameliorate potential traffic noise within the site of the development arising from the adjacent classified road, subject to the recommendations of the Acoustic Report that is the subject of agreed conditions of consent, and I am also satisfied that appropriate measures will be taken to ensure that those LAeq levels set out at s 2.120(3)(a) and (b) are not exceeded.

State Environmental Planning Policy (Resilience and Hazards) 2021

36. On the basis of the conclusions of the Phase 1 Contaminated Land Assessment prepared by Sullivan Environmental Sciences, dated 3 September 2021, and the Remediation Action Plan prepared by the same author, dated 17 November 2021, I am satisfied that the site will be made suitable for the proposed use, in accordance with cl 4.6 of the Resilience and Hazard SEPP.

Conclusion

37. 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.

38. 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.

39. The Court notes that:

1. Liverpool City Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), to the Applicant amending Development Application No. DA-1092/2021 in accordance with the following amended plans and documents:

1. The following amended architectural plans prepared by MDP Leon and Co, Project No. 2215:

Drawing Title	Drawing No.	Revision	Date
Cover Sheet	DA.00	I.1	22/08/22
Location Plan	DA.01	I.1	22/08/22
Site Analysis Plan	DA.02	I.1	22/08/22
Demolition Plan	DA.03	I.1	22/08/22
Basement Level	DA.04	I.1	22/08/22
Level 1 – Ground Floor	DA.05	I.1	22/08/22
Level 2	DA.06	I.1	22/08/22
Level 3	DA.07	I.1	22/08/22
Level 4	DA.08	I.1	22/08/22
Level 5	DA.09	I.1	22/08/22
Level 6	DA.10	I.1	22/08/22
Level 7	DA.11	I.1	22/08/22
Level 8 – Roof Terrace	DA.12	I.1	22/08/22
Roof Plan	DA.13	I.1	22/08/22
Elevation North	DA.14	I.1	22/08/22
Elevation South	DA.15	I.1	22/08/22
Elevation East & West	DA.16	I.1	22/08/22
Sections 1 – 4	DA.17 – DA.20	I.1	22/08/22
Area Computations	DA.21	I.1	22/08/22
Isometric Perspective N/E	DA. 22	I.1	22/0822
Isometric Perspective S/E	DA.23	I.1	22/08/22
Isometric Perspective N/W	DA.24	I.1	22/08/22
Isometric Perspective S/W	DA. 25	I.1	22/08/22
Sun Study	DA.26	I.1	22/08/22
Shadow Diagrams	DA.27	I.1	22/08/22
Schedule of Finishes	DA.28	I.1	22/08/22

2. The following amended landscape drawings prepared by Ground Ink Landscape Architect:

Drawing Title	Drawing No.	Revision	Date
Cover Sheet	LDA-00	C	22/08/22
Ground Level Landscape Plan	LDA-01	C	22/08/22
Level 5 Landscape Plan	LDA-02	C	22/08/22
Level 8 Landscape Plan	LDA-03	C	22/08/22
Landscape Details	LDA-04	C	22/08/22
Landscape Specification	LDA-05	C	22/08/22
Landscape Public Domain Works – Cover Sheet	LDA-00	B	22/08/22
Ground Level Landscape Plan	LDA-01	B	22/08/22
Landscape Details	LDA-02	B	22/08/22

3. Written request prepared by GAT & Associates dated September 2022, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008, to vary the carparking development standard in clause 29(2)(e) of the State Environmental Planning Policy (Affordable Rental Housing) 2009.

4. Stormwater Concept Design, Sheets 1 – 5, Revision B, prepared by SGC Consulting Engineers (Ref: 20210300) dated 1 July 2022.   

5. Acoustic DA Assessment prepared by Acouras Consultancy (Ref: SYD2021-1121-ROO1F) dated 4 July 2022.

6. Modified Car Park Assessment prepared by TTPP Transport Planning (Ref: 21295) dated 30 June 2022.

7. Traffic and Transport Impact Assessment prepared by TTPP Transport Planning (Ref: 21295) dated 19 August 2022.

8. Operational Waste Management Plan, Revision E, prepared by Elephants Foot Consulting (Ref: 3418) dated 1 July 2022.

9. Traffic Management Plan prepared by TTPP Transport Planning (Ref: 21295) dated 19 August 2022.

2. The amended development application has been lodged onto the NSW planning portal on 30 September 2022.

3. The Applicant has filed the amended development application with the Court on 30 September 2022.

Orders

40. The Court orders that:

1. The Applicant’s written request prepared by GAT & Associates dated September 2021, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008, to vary the carparking development standard in clause 7.3 of the Liverpool Local Environmental Plan 2008 is upheld.

2. The Applicant’s written request prepared by GAT & Associates, pursuant to clause 4.6 of the Liverpool Local Environmental Plan 2008, to vary the carparking development standard in clause 29(2)(e) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 is upheld.

3. The Applicant is to pay the Respondent's costs thrown away by the amended development application referred to in paragraph 39, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

4. The appeal is upheld.

5. Development consent is granted to Development Application No. DA-1092/2021, as amended, for the demolition of all existing structures and the construction of an eight (8) storey mixed use development with a commercial ground floor and café, and a fifty-two (52) room boarding house including manager’s room, landscaping and associated works at land identified as Lot 21 in DP 581273, known as 146-150 Terminus Street, Liverpool NSW 2170, subject to the conditions of consent in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

83431.22 Annexure A (1012761, pdf)

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Decision last updated: 15 November 2022