Cobden v Inner West Council

[2024] NSWLEC 1636

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cobden v Inner West Council [2024] NSWLEC 1636

Hearing dates:

24-25 July 2024, 2 and 19 September 2024: final submissions 20 September 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant shall pay the Respondent’s costs thrown away in the agreed sum of $18,500 within 28 days of this order.

(2) The Applicant's written request under clause 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by BBC Consulting Planners and dated 2 September 2024 seeking a variation of the development standard for floor space ratio set out in clause 4.4 of the IWLEP, is upheld.

(3) The Applicant's written request under clause 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by BBC Consulting Planners and dated 2 September 2024 seeking a variation of the development standard for landscaped areas for residential accommodation in Zone R1 set out in clause 4.3C of the IWLEP, is upheld.

(4) The appeal is upheld.

(5) (5) Development Application No. DA/2023/0265, as amended, for demolition of all existing structures and construction of a three-storey residential flat building containing fourteen (14) apartments, basement parking and landscaping works, on land identified at Lot 5 in DP348699, and Lot 3 in DP667195, known as 500-504 Darling Street Rozelle, NSW 2039, is determined by the grant of consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R1 General Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulations 2021, ss 29, 38

Inner West Local Environmental Plan 2022, cll 4.3C, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.14, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Housing) 2021, s 147, Sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Department of Planning & Environment, Apartment Design Guide, July 2015

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Daniel Charles Cobden (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Seymour SC (Applicant)
M Wright SC (Respondent)

Solicitors:
The Property Law Group (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/204400

Publication restriction:

Nil

Judgment

1. COMMISSIONER: An existing single storey commercial premises, known as No.500-504 Darling Street, Rozelle, currently stands at the corner of Darling Street and Wisbeach Street, Rozelle, behind which is hardstand for car parking associated with the current use of the property as a real estate agent.

2. Development application No. DA/2023/0265, as initially lodged, sought consent to demolish the existing structures on the site, to construct a four storey residential flat building comprising fourteen apartments, basement car parking and landscaping works (the DA), on three lots comprising being legally described as Lot 5 in DP348699, Lot 2 in DP668075 and Lot 3 in DP667195.

3. The DA was lodged with Inner West Council (the Respondent) on 24 April 2023, and notified between 10-31 May 2023, in response to which, 51 public submissions were received.

4. As the DA was not otherwise determined, the Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 26 June 2023 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Applicant was granted leave to amend the DA on two occasions prior to the hearing.

6. Most recently, on 23 July 2024, the Applicant was granted leave to rely on further amended plans and other documents contained in the Notice of Motion filed 15 July 2024, comprising the following:

1. Amended architectural plans, later marked Exhibit C

2. Amended Landscape plans, later marked Exhibit D

3. Updated Visual Impact Assessment, prepared by Urbaine dated 15 July 2024, later marked Exhibit E.

4. Amended Clause 4.6 in relation to Landscape Area, later marked Exhibit F.

5. Consultants Advice Note on electrical supply, dated 9 July 2024, later marked Exhibit G.

7. At the commencement of the hearing, the parties sought a direction for the experts in planning and heritage to confer on the amended plans and other documents at [6].

8. As a result of that joint conferencing, and the preparation of still further amended plans, the experts agreed that certain matters were resolved, but for the architectural treatment of the primary entry from Darling Street, and two pedestrian gates on the same frontage that is agreed to be capable of resolution.

9. I formed the view those issues that remained were capable of resolution and adjourned the matter, part heard, with directions to the experts to confer with the Applicant’s architectural team that were, for whatever reason, not present at Court.

10. I granted leave for the Applicant to incorporate those issues identified by the experts and for the Applicant to file further amended plans and other documents that were filed on 31 July 2024 comprising the following:

1. Amended architectural plans

2. Amended landscape plans

3. Amended Stormwater plans

4. Without prejudice conditions of consent

5. Clause 4.6 requests as necessary

11. I also directed that the Respondent provide any written submissions arising from those amended plans and other documents above, no later than 6 August 2024, and the hearing was listed to resume 2 September 2024.

12. On 30 August 2024, the parties advised the Court the parties had reached agreement on the matters in contention, and a signed agreement was submitted to the Court on 30 August 2024.

13. The matter was reallocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act), and the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the LEC Act, at which I presided on 2 September 2024.

14. At this time, certain errors were identified in the agreement and a corrected agreement was filed 20 September 2024, in accordance with s 34(10) of the LEC Act.

15. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

16. 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.

17. 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.

18. 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.

19. The site is located within the R1 General Residential zone according to the Inner West Local Environmental Plan 2022 (IWLEP), in which residential flat buildings are permitted with consent, where consistent with the objectives for development in the R1 zone, that are as follows:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide residential development that maintains the character of built and natural features in the surrounding area.

20. The site is also located within the Rozelle Commercial Distinctive Neighbourhood according to the Leichhardt Development Control Plan 2013 (LDCP), and also within the Darling Street Sub Area that is likewise identified in the LDCP.

21. The site is also located within The Valley Heritage Conservation Area (The Valley HCA), identified in Sch 5 of the IWLEP. The Valley HCA adjoins the Iron Cove Heritage Conservation Area, with the border between the two being the centreline of Darling Street.

22. As stated at [19], the site is located, either in whole or in part, within the Rozelle Commercial Distinctive Neighbourhood, at Part C2.2.5.5 of the LDCP. The desired future character for this area is set out in terms of an objective, which is itself to facilitate development that is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood, and by reference to controls.

23. Relevantly, Control C4 seeks to:

Maintain the predominant bulk, scale and siting of buildings compatible with adjoining development and the neighbourhood generally.

24. The Desired Future Character of the Darling Street sub-area is likewise subject to one objective, that is identical to that at [21], with two controls identified by the Respondent to be relevantly:

…

C4 Preserve the current residential character and uses along the part of Darling Street zoned residential.

C5 Maintain a two storey scale for residential development along Darling Street. Where sites are developed for mixed commercial/residential uses, a maximum building wall height of 7.2m applies.

…

The floor space ratio standard is exceeded

25. It is commonly held that the proposed development exceeds the floor space ratio (FSR) development standard of 0.7:1 permitted by cl 4.4(2B)(d) of the IWLEP.

26. The Applicant relies upon a written request authored by BBC Consulting Planners in accordance with cl 4.6 of the IWLEP, dated 2 September 2024 (the FSR Request) to justify the contravention.

27. The FSR Request identifies the proposed FSR to be 1.23:1, supported by architectural plan Drawing 8.08, Revision F that is appended to the FSR Request.

28. The FSR Request asserts that compliance with the FSR standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance with the standard.

29. The objectives at cl 4.4 of the IWLEP are in the following terms:

(a)  to establish a maximum floor space ratio to enable appropriate development density,

(b)  to ensure development density reflects its locality,

(c)  to provide an appropriate transition between development of different densities,

(d)  to minimise adverse impacts on local amenity,

(e)  to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.

30. In respect of objective (a), the density resulting from the FSR is appropriate when consistency with the remaining objectives of the FSR standard are understood.

31. In respect of objective (b), the development reflects the density of the intersection of the Rozelle Commercial Distinctive Neighbourhood and the Darling Street sub area. The proposed density is compatible with the density of development evident on No 541 Darling Street, otherwise known as 549 Darling Street, and No 551 Darling Street at the intersection of Darling Street and Wisbeach Street. To the rear, the proposal maintains the building line of the adjoining property to the north.

32. In respect of objective (c), the height of the proposal when viewed from Darling Street and the northern elevation is one storey higher than existing residential development to the north, and one storey lower than the former Balmain Cinema building, and the same number of storeys as the existing residential flat buildings diagonally opposite at Nos 551 and 559-563 Darling Street. To the east, a landscaped setback of 9m achieves an appropriate setback to lower scale dwellings on Wisbeach Street.

33. In respect of objective (d), the additional built form and mass will not result in any unreasonable overshadowing or loss of privacy, or any other kind of amenity for reasons the FSR request states is set out in the Statement of Environmental Effects, as amended and dated 2 September 2024.

34. In respect of objective (e), the development increases the tree canopy on the site in deep soil areas to the east of the site.

35. Next, the FSR Request cites the following environmental planning grounds it considers sufficient to justify the contravention of the FSR standard:

1. The site is large and located at a prominent location adjacent to other buildings of similar bulk, with good access to public transport and with an orientation that minimises potential overshadowing of adjoining properties.

2. The bulk and scale of the proposal is compatible with the existing character of the area, including the future low density residential area to the north, future medium density townhouses to the south and the shopping centre and community facilities in the B1 zone to the south of the site.

3. The additional floor space is primarily driven by a contextual response, on a site where increased built form can be accommodated without creating additional negative environmental impacts of a kind considered in the Statement of Environmental Impacts.

4. The siting of the proposal, and treatment of the building façade is designed to reduce the perceived bulk, scale and overshadowing and is sympathetic to the land form, and does not result in significant impact on the amenity of nearby existing or future development in terms of overlooking, overshadowing, obstruction of air or sunlight, or views.

5. Deep soil landscaping is proposed to the rear eastern boundary where it adjoins the canopy trees located on adjoining sites, ensuring the FSR exceedance does not change the relationship of the development to adjoining land to any great degree.

6. The traffic generated by the additional density, including the active transport infrastructure proposed, can be accommodated by the existing transport networks.

Expert evidence on the FSR exceedance

36. The Court was assisted in planning matters by experts, Mr Dan Brindle on behalf of the Applicant and Mr George Youhanna on behalf of the Respondent, who conferred in the preparation of a joint expert report (Exhibit 2), and again later in the preparation of a supplementary joint expert report completed in conjunction with the heritage experts (Exhibit 8).

37. The experts record their agreement, in Exhibit 8, that the FSR is acceptable, subject to certain matters identified by them being incorporated into the further amended plans at [10] for which the Applicant was granted time.

38. This agreement encompasses an assessment of the impacts of the proposal on local amenity.

39. While the impact of the development on views enjoyed by residents of the area is the subject of public submissions, it is also relevant in considering whether the FSR exceedance minimises adverse impacts on local amenity, being the focus of objective (c) of the FSR Standard.

40. The proposal is supported by a Visual Impact Assessment prepared by Mr John Aspinall of Urbaine, dated June 2024 (the VIA) (Exhibit E), and the view impact is also the subject of expert evidence provided by Mr Aspinall on behalf of the Applicant, and Mr George Youhanna on behalf of the Respondent who conferred in the preparation of a joint expert report (Exhibit 4).

41. While it was initially Mr Youhanna’s view that the proposal obscured significant views from Unit 17/549 Darling Street, I understand that the relocation of the rooftop plant to a location further south removes the obscuration, so that no impact results.

42. The owner of Unit 18 also submits that important views will be lost by the proposed building envelope. In particular, the owner identifies a seated view in the principal living area that is over the south western corner of the site towards the skyline of the city, and most particularly, the tower forms at Barangaroo.

43. Viewpoint No.5 of the VIA addresses a view taken in the vicinity of this seated view, but from a standing position. The impact is said to be “a measurable amount of view loss that results…however this is, for the most part, to sky, and middle distance landscape with views to the taller element and Barangaroo towers remaining. There are small, filtered views to the city, but these are already compromised by the mature street trees to the east of the subject site, which will continue growing.”

44. The VIA assesses the value of the view from this location as medium, the view loss as moderate, and concludes the impact is acceptable within the context of this location.

45. The FSR Request also asserts the development is in the public interest because it is consistent with the objectives for development in the R1 zone at [18]. I accept and am satisfied this is the case, because the proposed bulk and scale is compatible with the existing built form in the immediate context of the intersection of Darling Street and Wisbeach Street when the bulk and scale of the former Balmain Cinema and residential flat buildings to the south of it are considered in the context of the site. The proposed bulk and scale does not seek to match or mimic that of the existing built forms, but instead provides a form of transition between this built form and the existing lower scale character of Wisbeach Street.

46. A number of public submissions share a common concern at what they regard as excessive density, inadequate setbacks, overlooking, insufficient landscaped area, that are all kinds of amenity, and a form that is inconsistent with the character of the area.

47. No 2 Wisbeach Street presents 2 larger windows, and one smaller window to the boundary it shares with the subject site. From the onsite view it is clear the larger windows serve a bedroom and living room respectively, and the small window serves a bathroom.

48. The submission from the owner of No 2 Wisbeach Street expresses concern at the overshadowing on those windows that is likely to result from the proposal. Shadow analysis of the western elevation shows windows affected by the proposal from 2pm onwards on 21 June.

49. I consider the combination of built form and landscaping proposed adjacent to the boundary with No 2 Wisbeach Street to be acceptable when the setback and built form of development that complies with the FSR standard is understood. Those west facing windows will receive sunlight, to some degree, between 12pm and 2pm in midwinter.

50. Next, the owner of No 2 Wisbeach Street states that east facing balconies will overlook the private open space to the rear, and the west facing windows that are the only means of gaining sunlight into the property. I note balconies are set back in excess of 9m, and include privacy screens, detailed on architectural drawing DA4.04B which I believe to adequately deal with this concern.

51. The owner also expresses concern at noise generated by the close proximity of the driveway ramp. While not a contention, and unassisted by submissions on the point, I note the Traffic and Parking Impact Assessment (Exhibit A, Tab 19) concludes that the proposal will result in a nett reduction in traffic movements on the site from 10 vehicles movements per hour, as is currently the case, to 7.8 vehicle movements per hour. I do not understand this conclusion to be changed in the Addendum Traffic & Parking Assessment dated 3 June 2024, contained in Exhibit B.

52. I likewise consider the rear yards of Nos 4 and 6 Wisbeach Street to be adequately distant from the potential for overlooking, and in the case of the rear yard of No 4 Wisbeach Street, a brick building to the west of the lot would appear to provide some visual privacy.

36. The written submission of the owner of No 6 Wisbeach Street (Exhibit 7, folios 68-70) relies on a diagram showing the proximity of a balcony to the western façade of No 2 Wisbeach Street, and expresses concern at the overshadowing of No 2 Wisbeach Street. Having stood in the rear yard, facing west I consider the setback of the proposal from the shared boundary, the variety of screening measures and the likely nature of use of the landscaped area adjoining the rear yard of No 6 Wisbeach Street to be sufficient to maintain an acceptable degree of privacy in the rear yard, and in rooms adjoining it.

37. While privacy is unquestionably important to the owner of No 8 Wisbeach Street, and concerns are held as to the sightline from the eastern balconies of the proposal to a window in the first floor study, and a small study building in the rear yard, such a sightline is through the rear landscaped area of the subject site, and across the rear yards of Nos 2, 4 and 6 to a study that has 3 windows – one facing west in the direction of the subject site, and 2 windows facing north. So understood, I consider that in the unlikely event the owner of No 8 Wisbeach Street is truly troubled by a sightline that appears in excess of 20m in a dense urban environment, and where screening measures are proposed in the development, it is a reasonable expectation that privacy measures be taken by that owner.

38. While I regard a number of the environmental planning grounds to promote the benefit of the development itself, and not address the particular non-compliance, I accept that arrangement of the floor space on the site provides a built form that is compatible with that of development nearby. Furthermore, such an arrangement provides a consolidation of landscaped area, albeit less than that required, where the proposed landscape adjoins existing landscape on neighbouring lots.

39. Such an arrangement is consistent with three objectives of the FSR standard. That is, to provide an appropriate transition between development of different densities, to minimise adverse impacts on local amenity, and to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.

40. I note the Statement of Environmental Effects, on which the FSR request relies, assesses the following aspects of amenity:

1. In respect of overshadowing, the impact on the western façade of No 2 Wisbeach Street has been minimised by a 9m setback and is no greater than that likely to result from a complying development where built form of a greater height than the car park entry could be expected within close proximity of the shared boundary. Instead, the proposal locates hard and soft landscaping in a stepped arrangement that would appear to provide a degree of buffer without further overshadowing windows in a manner that might otherwise be expected.

2. In terms of privacy and overlooking, sightlines from east-facing balconies to the rear are managed by fixed screens, detailed in the architectural plans, and by planter boxes that further interrupt views to the private open space of Nos 2, 4 and 6 Wisbeach Street.

3. The exceedance of FSR does not give rise to additional traffic impacts. In fact, it is uncontested that the proposal, including the exceedance, results in a reduction of vehicle movements per hour in the morning and afternoon peaks, when current vehicle movements are factored.

58. I accept and am satisfied that compliance with the FSR standard is unreasonable or unnecessary because the objectives of the standard are achieved. While I consider the reasons in the FSR request to be sufficient to demonstrate that objectives (a), (b), (d), (e) and (f) are achieved, for the following reasons, I am also satisfied that objective (c) is also achieved.

1. Firstly, when the desired future character of the Rozelle Commercial Distinctive Neighbourhood is considered, the proposal is compatible with the predominant bulk, scale and siting of adjoining development on Darling Street, which is the sub-area of which the site is a part.

2. That part of Darling Street comprises the former Balmain Cinema, and two residential flat buildings south of the intersection with Wisbeach Street. While the south east corner is occupied by a single storey terrace, it is alone in presenting such a bulk and scale to Darling Street on this intersection.

3. Secondly, when the desired future character of this sub-area is understood by reference to Controls C4 and C5, the proposed development does not, by failing to comply with the FSR standard, do other than preserve the residential character and uses along this part of Darling Street zoned residential.

4. The proposal adopts a zero setback, and parapet height aligned to the adjoining residential terrace at No 496 Darling Street which is an aspect of siting, bulk and scale that serves to consolidate the floor space on the site to the rear of the site, that I accept is an environmental planning ground.

5. Thirdly, I note that while the scale of the development presenting to Darling Street presents a building wall height in excess of the 7.2m control at C5 of the Darling Street sub-area (Part C2.2.5.5(a) of the LDCP), that height is for mixed commercial/residential uses, the site is within The Valley HCA, adjoins the Iron Cove HCA, and the heritage experts agree the height of the parapet should align to the parapet of the adjoining terrace at No 496 Darling Street, which results in a departure from the desired future character, but one that is to the satisfaction of the heritage experts.

59. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R1 General Residential Zone, at [28], for the reasons given in the request.

60. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP and I find no grounds on which the Court should not uphold the height request.

The landscape area standard is exceeded

61. The site is also subject to provisions at cl 4.3C of the IWLEP requiring at least 20% of the site to be landscaped area.

62. It is commonly held that the proposal comprises a landscaped area of 11%, and the Applicant relies upon a written request authored by BBC Planners in accordance with cl 4.6 of the IWLEP, dated 2 September 2024 (Request to Vary the Landscaped Area) to justify the contravention.

63. The Request to Vary the Landscaped Area asserts that compliance with the Landscaped Area standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance with the standard.

64. The objectives at cl 4.3C are in the following terms:

(a)  to provide landscaped areas for substantial tree planting and for the use and enjoyment of residents,

(b)  to maintain and encourage a landscaped corridor between adjoining properties,

(c)  to ensure that development promotes the desired character of the neighbourhood,

(d)  to encourage ecologically sustainable development,

(e)  to control site density,

(f)  to provide for landscaped areas and private open space.

65. The objectives are said to be achieved for reasons summarised as follows:

1. Landscaped area is consolidated into one location that adjoins the landscaped area of adjoining lots which makes the area suited to substantial tree planting.

2. By co-locating the landscaped area with those adjoining to the east and north of the site provides an opportunity for a mid block canopy, enhancing the landscaped corridor between adjoining properties.

3. The siting of built form along the Darling Street frontage enables the eastern portion of the site to contain the landscaped area, access to basement and the like which provides appropriate separation to adjoining dwellings on Wisbeach Street.

4. The landscaped area proposed is an area capable of rainwater infiltration, accommodating trees and other vegetation.

5. The proposal achieves the site coverage standard and provides landscaped area in an appropriate setback from adjoining properties where there the site does not currently accommodate any landscaped area.

6. The proposal provides landscaped area adjacent to paved outdoor area that is for use by residents as communal open space, as well as balconies and terraces for each dwelling that serves as private open space.

66. Next the Request to Vary the Landscaped Area advances environmental planning grounds it argues are sufficient to justify the contravening of the standard for reasons summarised as follows:

1. The site is large and presents a similar bulk and scale to other buildings in the immediate vicinity on Darling Street, with good access to public transport, and with a solar orientation that minimises the potential overshadowing of adjoining properties.

2. The proposed landscaped area is consolidated in one location, is of sufficient size to retain the tree canopy in the area, and for use as communal open space, and adjoins the landscaped area of adjoining properties.

3. When the existing controls, constraints and opportunities of the site and existing development in the area are properly understood, the proposal represents a balanced outcome.

4. The proposal is consistent with the desired future character of the Rozelle Commercial Distinctive Neighbourhood the associated controls.

5. The site currently has no landscaped area.

6. There are no significant adverse amenity impacts arising from the non-compliance with the landscaped area standard such as overlooking, overshadowing, obstruction of light or air, obstruction of views.

67. The Request to Vary the Landscaped Area also asserts the development is in the public interest because it is consistent with the objectives for development in the R1 zone at [18], as the apartments provide housing for the community, contribute a mix of apartment types, and which maintain solar access to adjoining properties. Furthermore, the development enhances the appearance and amenity of the site, within an area that can accommodate growth and change, and where the development has been designed to harmonise with surrounding development in the Rozelle Commercial Distinctive Neighbourhood and the Darling Street sub-area. I accept that the arrangement of planters that in some cases provide for a depth of soil at 900mm supplements the landscaped area proposed, and particularly where the subject site adjoins the neighbouring property at No 2 Wisbeach Street.

68. While I regard a number of the environmental planning grounds to promote the benefit of the development itself, and not address the particular non-compliance, I accept that the consolidation of the area optimises the effect of the Landscaped Area as an area that can accommodate substantial tree planting and serves to encourage a landscaped corridor between adjoining properties in Wisbeach and High Street. This is because the control, at subcl (4) permits inclusion of any area with a width or length of 1m or more. By consolidating the landscaped area in the manner shown, and adjacent to communal open space that combines paved and raised planter beds, the landscaped area is optimised for the purposes of that to which the objectives of the standard are directed. That is, to provide an area of uncompromised deep soil adjacent to mature canopy trees, identified in the Arboricultural Impact Assessment prepared by Horticultural Management Services dated 7 June 2022 (Arborists Report) as two Jacaranda’s and one lemon scented gum.

69. The development proposes two additional canopy trees to be planted in the deep soil area that comprises the landscaped area. Such an outcome would not be possible if compliance with the landscaped area was achieved by areas of 1m in length or width.

70. I also accept and am satisfied that compliance with the Landscaped Area standard is unreasonable or unnecessary because the objectives of the standard are achieved, for reasons set out at [64].

71. As such, I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R1 General Residential Zone, for the reasons given in the request.

72. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP and I find no grounds on which the Court should not uphold the Request to Vary the Landscaped Area.

Heritage

73. As the site is located within The Valley Heritage Conservation Area, and is located opposite the former Balmain Cinema, an item identified in Sch 5 of the IWLEP for its heritage significance at a local level, the provisions of cl 5.10 of the IWLEP apply.

74. In considering the likely impacts of the proposed development on The Valley HCA and on the former Balmain Cinema, the Court was assisted by the expert evidence of Mr Craig Burton on behalf of the Applicant, and Ms Lisa Trueman on behalf of the Respondent. The experts conferred in the preparation of a joint expert report (Exhibit 3), and a supplementary joint report in conjunction with the planning experts (Exhibit 8).

75. The experts agree that the amended plans at [10] resolve heritage contentions, and result in no detriment to The Valley HCA, or the heritage items in the vicinity of the site, in answer to the consideration required at cl 5.10 of the IWLEP.

The design of residential apartment development

76. The Respondent initially contends that the proposal fails to achieve the visual privacy required by Objective 3F of the Apartment Design Guide (ADG) by providing setback of less than 9m to the east, adjoining lower scale development in Wisbeach Street.

77. While privacy is an aspect of amenity dealt with at [56(2)], s 147 of State Environmental Planning Policy (Housing) 2021 requires the Court to consider the design principles at Sch 9, and the provisions of the ADG of which privacy is a part.

78. The design criteria at Objective 3F-1 states that a separation distance of 6m applies between habitable rooms and balconies, and a side or rear boundary, in circumstances where development is up to 12m in height, as is the case here.

79. The design guidance in support of the objective also provides that apartment buildings should have an increased separation distance of 3m when adjacent to a different zone that permits lower density residential development to provide for a transition in scale and increased landscaping.

80. Furthermore, the design guidance recommends direct lines of sight be avoided for windows and balconies across corners.

81. Drawing 8.10, Revision E includes a side setback diagram which depicts the setback of 9m, but for an area of 3.5m2 that is within the 9m setback.

82. Having considered the ADG, and the degree of variation in density permitted to the subject site by the application of cl 4.4(2B)(d), that otherwise excludes the properties to the east of the site on Wisbeach Street, I accept the proposal is consistent with objective 3F-1. Where the development is within the 9m setback, screening is provided and the uppermost floor setback to accommodate such a setback.

83. The Court is also required to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9 of the Housing SEPP. I am assisted in so doing by a statement dated 2 September 2024 and prepared in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) that attests Mr Geoff Shaw (Arch Reg No. 9148) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development, and how the objective sin Parts 3 and 4 of the ADG are addressed.

Other matters for consideration

84. The site is located within an area identified on the relevant map at cl 6.1(2) of the IWLEP as Class 5 Acid Sulfate Soils, however as the development is not within 500m of another class, or classes of such soil, nor proposes excavation below 5m Australian Height Datum, I conclude that an Acid Sulfate Soils management plan is not necessary.

85. I have considered the extent of earthworks proposed on the site in accordance with cl 6.2 of the IWLEP, and conclude, on the basis of the findings of the Preliminary Geotechnical Assessment prepared by Martens dated October 2022, that there is unlikely to be any detrimental impact on the drainage patterns in the locality, or on the future development of the land, the amenity of adjoining properties or any other aspects of a kind identified at subcl (3).

86. On the basis of the Stormwater Plans prepared by Romanous & Associates, and the extent of water-permeable surfaces evident on the land and in planter beds, I am satisfied that the development is designed to maximum such surfaces. I note on site detention (OSD) of water is proposed, as is a 3000L rainwater tank, and the stormwater drainage and detention system is supported by ‘MUSIC’ modelling undertaken in support of the Stormwater Plans. On the basis of the results of MUSIC modelling, I am satisfied that the stormwater runoff is reduced from the existing runoff, and that a reduction in pollutants and suspended solids contained within stormwater runoff are likewise reduced from the levels that exist today. Accordingly, I conclude Stormwater management is adequately addressed, in terms set out in cl 6.3 of the IWLEP.

87. Relatedly, and assisted by a letter prepared by Romanous & Associated dated 12 August 2024, I am satisfied that the water quality and water flow are consistent with those matters about which I must be satisfied in accordance with s 6.6(2) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).

88. Furthermore, as the Stormwater Plans depict filtration devices in pits proposed on the site, and storm filters in the OSD satisfies me that any impact on animals or vegetation is minimised, will not have an impact on aquatic reserves, cause erosion or sedimentation in terms set out in s 6.7 of the Biodiversity SEPP.

89. As the site is not flood liable, does not impact recreational uses nor the public access to foreshores, waterways or the like, I do not consider ss 6.8 or 6.9 of the Biodiversity SEPP to apply.

90. The architectural plans, at Drawing DA0.02, Revision G, provides a ‘Unit Mix Schedule’ that identifies 4 units in the development comprising one bedroom, which complies with the requirement at cl 6.14 of the IWLEP for at least 25% of dwellings on the site to contain only one bedroom. Additionally, as only one unit comprises 3 bedrooms, the proposed development also complies with cl 6.14(3)(b) of the IWLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

91. Section 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated.

92. On the basis of the Site Contamination Assessment prepared by Martens & Associates dated 20 May 2024, and the Remedial Action Plan (RAP) of the same author and date, I accept the site is contaminated in the manner summarised at p 5 of the RAP. However, I am also satisfied that the site will be made suitable for the purpose for which development is proposed before the land is used for that purpose.

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

93. The application is accompanied by BASIX certificate (Certificate No. 1386065M_03 dated 30 July 2024), prepared by Eco Certificates Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

94. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

95. 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.

96. 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.

97. The Court notes that:

1. The Respondent approves under s 38 of the Environment Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/2-23/0265 in accordance with the following documents:

Plan, Revision and Issue No.	Plan Name	Date	Prepared by
Architectural Plans
DA1.03 Rev D	Site Plan	25/07/2024	Marchese Partners
DA1.04 Rev D	Demolition Plan	14/05/2024	Marchese Partners
DA2.21 Rev H	Ground Floor Plan	30/07/2024	Marchese Partners
DA2.22 Rev G	Level 1 Floor Plan	08/08/2024	Marchese Partners
DA2.23 Rev G	Level 2 Floor Plan	08/08/2024	Marchese Partners
DA2.24 Rev E	Roof Plan	25/07/2024	Marchese Partners
DA2.25 Rev F	Basement Plan	26/07/2024	Marchese Partners
DA3.01 Rev G	East Elevation	08/08/2024	Marchese Partners
DA3.02 Rev G	West Elevation	26/07/2024	Marchese Partners
DA3.03 Rev G	South Elevation	30/07/2024	Marchese Partners
DA3.04 Rev E	North Elevation	25/07/2024	Marchese Partners
DA4.01 Rev E	Section 1	25/07/2024	Marchese Partners
DA4.01B Rev C	Section 1B	25/07/2024	Marchese Partners
DA4.01C Rev A	Section 1C	8/08/2024	Marchese Partners
DA4.02 Rev E	Section 2	25/07/2024	Marchese Partners
DA4.03 Rev E	Section 3	25/07/2024	Marchese Partners
DA4.03B Rev F	Section 4	8/8/2024	Marchese Partners
DA4.04B Rev F	Facade Sections	8/8/2024	Marchese Partners
DA6.01 Rev C	Adaptable Unit Plan	14/05/2024	Marchese Partners
DA6.02 Rev C	Adaptable Unit Plan	14/05/2024	Marchese Partners
DA7.02 Rev E	Eastern Boundary Detail	26/07/2024	Marchese Partners
DA7.03 Rev D	Parking Ramp Detail	25/07/2024	Marchese Partners
DA9.01 Rev E	Material board	26/07/2024	Marchese Partners
Landscape Plans
LS-200 Rev E	Landscape Concept Site Plan	30/07/2024	greenplan
LS-201 Rev A	Landscape Concept Site Plan – Level 1	8/08/2024	greenplan
LS-202 Rev A	Landscape Concept Site Plan – Level 2	8/08/2024	greenplan
LS-300 Rev D	Landscape Planting Plan	30/07/2024	greenplan
LS-300A Rev A	Landscape Planting Plan – Level 1	8/8/2024	greenplan
LS-300B Rev A	Landscape Planting Plan – Level 2	8/8/2024	greenplan
LS-301 Rev E	Landscape Planting Schedule	8/8/2024	greenplan
LS-302 Rev B	Landscape Concept Site Plan	8/8/2024	greenplan
Stormwater Drawings
2323-S1/4 Rev F	Stormwater	12/08/2024	John Romanous & Associates
2323-S2/4 Rev F	Stormwater	12/08/2024	John Romanous & Associates
2323-S3/4 Rev F	Stormwater	12/08/2024	John Romanous & Associates
2323-S4/4 Rev F	Stormwater	12/08/2024	John Romanous & Associates
Other Documents
Stormwater – JRA Supplementary letter	12/08/2024	John Romanous & Associates
-	Arborist Impact Assessment & Tree Management Plan Supplementary Letter	07/06/2022 25/07/2024	Horticultural Management Services
P2208847JR03V02	Remedial Action Plan	20/05/2024	Martens & Associates P/L
P2108847JR02V02	Site Contamination Assessment	20/05/2024	Martens & Associates P/L
-	Noise Impact Assessment	20/05/2022	Pulse White Noise Acoustics
Report No.4020 Rev E	Operational Waste Management Plan	03/06/2024	Elephant Foot Consulting
J24016	Pre-DA Structural Report – Boundary Shoring	14/05/2024	GZ Consulting Engineers Pty Ltd
P2208847JR01V05	Preliminary Geotechnical Assessment	20/05/2024	Martens & Associates P/L
1386065M_02	BASIX Certificate	30/07/2024	Eco Certificates P/L
-	Clause 4.6 Request for FSR Variation	05/08/2024 (Amended 2 September 2024)	BBC Consulting Planners
-	Clause 4.6 Request for Landscaped Area Variation	30/07/2024 (amended 2 September 2024)	BBC Consulting Planners
-	Statement of Environmental Effects	December 2022 (amended 2 September 2024)	BBC Consulting Planners
Issue D	Urban Design Analysis and Justification and SEPP 65 Design Verification Statement	02/09/2024	Marchese Partners

(Collectively the Amended Development Application)

2. The Applicant filed the Amended Development Application with the Court on 2 September 2024 and 20 September 2024.

Orders

98. The Court orders that:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant shall pay the Respondent’s costs thrown away in the agreed sum of $18,500 within 28 days of this order.

2. The Applicant's written request under clause 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by BBC Consulting Planners and dated 2 September 2024 seeking a variation of the development standard for floor space ratio set out in clause 4.4 of the IWLEP, is upheld.

3. The Applicant's written request under clause 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by BBC Consulting Planners and dated 2 September 2024 seeking a variation of the development standard for landscaped areas for residential accommodation in Zone R1 set out in clause 4.3C of the IWLEP, is upheld.

4. The appeal is upheld.

5. Development Application No. DA/2023/0265, as amended, for demolition of all existing structures and construction of a three-storey residential flat building containing fourteen (14) apartments, basement parking and landscaping works, on land identified at Lot 5 in DP348699, and Lot 3 in DP667195, known as 500-504 Darling Street Rozelle, NSW 2039, is determined by the grant of consent subject to the conditions of consent at Annexure A.

T Horton

Commissioner of the Court 

Annexure A

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Decision last updated: 11 October 2024