Construction Assignments Pty Ltd v Inner West Council

[2023] NSWLEC 1281

Land and Environment Court

New South Wales

Medium Neutral Citation:

Construction Assignments Pty Ltd v Inner West Council [2023] NSWLEC 1281

Hearing dates:

Conciliation conference on 6 February and 28 February 2023

Date of orders:

07 June 2023

Decision date:

07 June 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely on the amended documentation listed in Annexure A.

(2) The Applicant’s written request pursuant to clause 4.6 of the Marrickville Local Environmental Plan 2011 (Marrickville LEP) seeking to justify contravention of the height of buildings standard under clause 4.3 of the Marrickville LEP has been considered and the necessary satisfaction has been formed under clause 4.6(4) of the Marrickville LEP.

(3) The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $6000 within 28 days of the date of this order.

(4) The appeal is upheld.

(5) Development Application No. DA/2021/1167 for demolition of the existing structures and construction of a new 4-storey commercial building comprising business and office premises including remediation of the site and associated landscaping at 11 – 17 Hutchinson Street, St Peters, is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – commercial premises – variation to height development standard – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 55

Environmental Planning and Assessment Regulation 2021, s 37

Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, ss 34, 39

Marrickville Local Environmental Plan 2012, cll 4.3, 4.6, 4.4, 6.1, 6.2, 6.5, 6.6, 6.12, 6.20

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

Standards Australia, AS 2021:2015 (March, 2015)

Category:

Principal judgment

Parties:

Construction Assignments Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
D Robertson (Respondent)

Solicitors:
Mills Oakley (Applicant)
Clayton Utz (Respondent)

File Number(s):

2022/254147

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA/2021/1167 (the DA) by Inner West Council (the Council). In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. Development Application DA/2021/1167 originally sought consent for the demolition of existing structures and construction of a new 4 storey commercial building comprising business and office premises including remediation of the site and associated landscaping at 11-17 Hutchinson Street, St Peters.

3. On 26 November 2021, the Development Application was lodged with the Respondent.

4. On 28 June 2022, the Respondent issued its determination of the Development Application by way of refusal. The Applicant was formally notified of the refusal and provided with reasons on 11 July 2022.

5. On 26 August 2022, the Applicant commenced Class 1 proceedings in the Land and Environment Court appealing against the Respondent’s refusal of the Development Application.

6. 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 6 February 2023 and at which I presided.

7. During the s 34 conference, the parties considered amended plans and material that now resolves the Council's Contentions. As part of its s 34 bundle of documents, the Applicant provided amended documents proposing the following changes:

1. increased setback of north-western building line on levels 1-3 to align with existing building line at 19 Hutchinson Street;

2. insert of dedicated planting space along the western run of communal open space on Level 1;

3. provision of additional landscaping and privacy screening along northern boundary communal open space;

4. changes to parking including reduction of bicycle spaces from 21 spaces to 20 spaces and provision of 17 car parking spaces;

5. changes to ground floor level including increase in ground floor tenancy, recess of roller shutter door to 5.5m and relocation of waste room;

6. adjustments to lift and core on all levels;

7. update in Gross Floor Area (GFA) to reflect revised design, new site area and inclusion of areas such as fire egress, central stair and pump room.

8. Upon review and discussion of the amended documentation, the parties were able to reach an ‘in-principle’ agreement, subject to further revisions from the Applicant. Accordingly, the s 34 conference was adjourned in order to allow the Applicant to prepare further amended documentation.

9. The parties have now reached an agreement as to the resolution of those contentions which has resulted in the following amendments to the proposed development (Amended Application):

1. Overall changes to the design and built form of proposed Level 3, including:

1. revision of materiality and treatment of Level 3 roof form as it fronts the northern boundary;

2. increased setback of glass line to accommodate an additional planter box and balcony area along the northern elevation;

3. addition of planter box along the Level 3 eastern elevation adjoining 9 Hutchinson Street;

2. shifting of Level 2 balcony further west and away from any future development at 36-42 May Street;

3. reorientation of setbacks and glass line on Level 1 to accommodate increased planting space; and

4. revised landscaping in deep soil and planter areas with further soil and drainage details provided.

10. The Council, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the DA in accordance with the amended plans and material listed at Annexure A.

11. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 March 2023.

12. The parties asked 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, 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.

13. 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 power under s 4.16 of the EPA Act.

14. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

15. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [16] to [45] below.

Satisfaction of jurisdiction

Marrickville Local Environmental Plan 2011 & Inner West Local Environmental Plan 2022

16. On 12 August 2022, the Marrickville Local Environmental Plan 2011 (Marrickville LEP) was repealed and superseded by the Inner West Local Environmental Plan 2022 (Inner West LEP). Given that the Development Application was lodged prior to the commencement of the Inner West LEP, the Marrickville LEP remains the applicable planning instrument pursuant to the savings provision under cl 1.8A of the Inner West LEP. References to clauses below are in relation to the Marrickville LEP.

17. The site is zoned B7 - Business Park. The proposed use ‘office premises’ is permissible with consent within the B7 Zone. Furthermore, the proposed development seeks consent for demolition of existing structures and construction of an office building.

18. I am satisfied that the proposed development is consistent with the objectives of the B7 Zone which are:

•  To provide a range of office and light industrial uses.

•  To encourage employment opportunities.

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

•  To provide for limited residential development in conjunction with permissible active ground floor uses.

•  To provide business and office premises for the purposes of certain art, technology, production and design sectors.

19. The parties agree and I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

20. Pursuant to cl 4.3 (Height of Buildings) of the Marrickville LEP, the subject site has a 14m height control. The proposed development stands at 16.43m at its highest point, an exceedance of 2.43m or 17.35% variation. Accordingly, a written cl 4.6 variation request (The Request) of the height control is included in the Amended Application.

21. The Request says that compliance with cll 4.3 of the Marrickville LEP is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standard are achieved, notwithstanding the noncompliance with the numerical standards for reasons which can be summarised as follows:

1. the desired future character of the area has been established through a series of approvals of the sites surrounding the proposed development. Adjacent developments including 2 - 22 Hutchinson Street, 19 Hutchinson Street, and 9 Hutchinson Street have effectively established a 4 - 5 storey character in the surrounding locality, with which the proposed development is compatible;

2. the height of the proposed development will not have any significant impact on the exposure of public areas to sky and solar access. Additionally, in order to preserve solar access to adjoining developments, the area of non-compliance (proposed Level 3) has been centred towards the front of the site;

3. the height of the proposed development has been designed so as to maintain and provide an appropriate transition between built forms, matching the rear building line of 19 Hutchinson Street;

22. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), an Applicant need only establish one way, although if more ways are applicable, an Applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]).

23. I am satisfied that the relevant standard is not relevant in the circumstances of this case for the grounds set out in the Request.

24. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the height standard for reasons contained in the Request, that may be summarised as follows:

1. the proposed development will facilitate employment opportunities within the St Peters creative precinct, ultimately promoting an improved social and economic outcome for the community;

2. the proposal allows for the delivery of a substantial uplift of high-amenity commercial floor space in close proximity to public transport, promoting the orderly and economic use of land;

3. the proposed development will enhance the amenity and presentation of the surrounding area through the delivery of substantial green space and a design that is consistent with the adjoining buildings;

25. I am satisfied that the proposed development remains consistent with the objectives of the particular development standard and the B7 zone in which the development is to be carried out, the consent authority can be satisfied that that the proposed development is in the public interest.

26. I consider the Proposed Development (as amended) to be consistent with the objectives of the relevant standards, and I am satisfied that the objectives of the B7 zone as set out in [19] are also achieved.

27. Accordingly, I am satisfied that the Proposed Development (as amended) is in the public interest pursuant to cl 4.6(4)(a)(ii) of the Marrickville LEP and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act.

28. For the reasons stated above, I find the Request to vary the height standard should be upheld.

29. Pursuant to cl 4.4 (Floor Space Ratio (FSR)), the site is subject to a maximum FSR control of 2.0:1. As a result of the amendments, I am satisfied from the evidence that the development now proposes a maximum FSR of 1.97:1, which is compliant with this control.

30. Pursuant to cl 6.1 (Acid Sulfate Soils (ASS)), the site is mapped as a Class 5 ASS risk area. The preliminary site investigation, provided previously when filed with the Development Application, concludes that there is low potential for ASS materials to be disturbed during the proposed development. I am satisfied that pursuant to sub-cl 6.1(4)(a), an ASS management plan is not required.

31. Pursuant to cl 6.2 (Earthworks), the Amended Application comprises minor earthworks to facilitate the delivery of ground level car parking. In compliance with the requirements under cl 6.2 of the Marrickville LEP, a geotechnical assessment (Tab 7 of the Class 1 Application) has been included in the Amended Application. This assessment concludes that the site is suitable for the proposed earthworks. I am satisfied that relevant conditions of consent have been incorporated requiring compliance with this provision.

32. Pursuant to cl 6.5 (Development in Areas Subject to Aircraft Noise), the site is within a Australian Noise Exposure Forecast (ANEF) contour of 20 or greater to the Kingsford Smith Airport and proposes the erection of a new building. In satisfaction of the mandatory considerations sub-cl 6.5(3)(a)-(c), the Applicant’s submitted acoustic assessment provides an assessment against the relevant criteria within the AS 2021:2015 (March, 2015) (See section 3.1, Tab 6 of the Class 1 Application). This acoustic assessment concludes that the development will meet the indoor design sound levels as shown in table 3.3 in AS 2021:2015 (Page 18). Relevant conditions of consent have been incorporated requiring compliance with this provision.

33. Pursuant to cl 6.6 (Airspace Operations), the proposed development shown in the Amended Application will be at a maximum height of 16.43m, in line with the adjacent buildings. This falls under the 51m maximum height notation shown on the Limitation or Operations Surface Map. Accordingly, I am satisfied from the evidence that the proposed development will not penetrate the limitation or operations surface, in compliance with this provision.

34. Pursuant to cl 6.12 (Business and Office Premises in Certain Zones), the parties have agreed on conditions of consent nominating that the development be used for a creative purpose in line with the requirements under sub-cl 6.12(3), which I am satisfied is in compliance with this provision.

35. Pursuant to cl 6.20 (Design Excellence), the Applicant has prepared a planning assessment against the Design Excellence provisions in this clause and I am satisfied is in compliance with this provision.

State Environmental Planning Policy (Resilience and Hazards)2021 (SEPP Resilience)

36. Section 4.6 of SEPP Resilience requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. The subject site has historically been used for factory work, tool manufacturing, upholstery and furniture manufacturing, which is a prescribed purpose pursuant to the Contaminated Land Planning Guidelines (See p 12, Tab 12 of the s 34 Agreement Bundle). A Preliminary (Stage 1) Site Investigation prepared by JK Environments was included in the Application documents originally lodged with Council and filed with these proceedings. Consequent to the recommendations of this study, the Applicant organised for the preparation of the following further materials:

1. Detailed Site Investigation prepared by JK Environments;

2. Data Gap Investigation prepared by JK Environments;

3. Sampling, Analysis and Quality Plan prepared by JK Environments;

4. Vapour Intrusion Risk Assessment Report prepared by Terravale Consulting; and

5. Remedial Action Plan prepared by Redditus.

37. The detailed site investigation concludes that the land can be made suitable for the proposed use once remediated and makes a number of recommendations including the preparation of a Remedial Action Plan. The proposed methodology for remediating the subject site is further detailed in the Remedial Action Plan. The parties and their respective contaminated land experts agreed that the additional assessments are sufficient to satisfy the mandatory considerations prescribed by s 4.6 provided the development is carried out in accordance with the agreed conditions. The recommendations of the Remedial Action Plan and contamination assessments are incorporated into the proposed conditions of consent (cf. proposed conditions 15-18 and 38-43 and 62-63). Accordingly, I am satisfied as to the status of the site and method of remediation in accordance with s 4.6 of the SEPP Resilience.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

38. The Amended Application was lodged under the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). On 1 March 2022, the Vegetation SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).

39. Chapter 2 of the Biodiversity SEPP relates to clearing vegetation in non-rural areas. The proposed development seeks to remove 5 trees on the site. The number of trees proposed to be removed has not been altered in the Amended Application.

40. The removal of these trees has been assessed by the Respondent Council in the DA and s 34 phase of these proceedings.

41. The parties are agreed that the removal of these trees is consistent with local planning objectives, having regard to the replacement planting as proposed in the landscaping strategy for the site. Conditions of consent have been imposed requiring the development to implement the landscaping as shown in the landscape plans (Tab 4 of the s 34 Agreement Bundle)

42. Having reviewed the documents comprising the DA and Amended Application, the parties are agreed that the Court, as the consent authority, can be satisfied that the proposed development is consistent with Ch 2 of the Biodiversity SEPP.

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

43. Clause 6 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) provides that a BASIX Certificate is to accompany a development application seeking consent for the erection, alteration, or change of use of a “BASIX-affected” building/development.

44. A “BASIX affected building” is defined in the Environmental Planning and Assessment Regulation 2000 under cl 3 as a building ‘containing at least 1 dwelling’.

45. The proposed development concerns the construction of a commercial building for use as an office premises. Given no dwelling or residential component is proposed, a BASIX certificate is not required.

Conclusion

46. 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.

47. 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.

48. The Court notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA/2021/1167 in accordance with the documents listed below:

Plan name	Drawing Number	Revision	Date	Prepared by
Amended Architectural Plans
Existing/Demolition Plan	A-02	T	28.02.23	Mostaghim
Ground Level Plan	A-03	T	28.02.23	Mostaghim
Level 01 Plan	A-04	T	28.02.23	Mostaghim
Level 02 Plan	A-05	T	28.02.23	Mostaghim
Level 03 Plan	A-06	T	28.02.23	Mostaghim
Roof Plan	A-07	T	28.02.23	Mostaghim
South Elevation	A-08	T	28.02.23	Mostaghim
North Elevation	A-09	T	28.02.23	Mostaghim
West Elevation	A-10	T	28.02.23	Mostaghim
East Elevation	A-11	T	28.02.23	Mostaghim
Section A	A-12	T	28.02.23	Mostaghim
Section B	A-13	T	28.02.23	Mostaghim
Section C	A-14	T	28.02.23	Mostaghim
Section Thru Street	A-15	T	28.02.23	Mostaghim
Materials and Finishes Schedule	A-20	T	28.02.23	Mostaghim
Level 1 Terrace Sections Sheet 1	A-30	R	15.02.23	Mostaghim
Level 1 Balcony Section 1	A-37	T	28.02.23	Mostaghim
Level 1 Balcony Section 2	A-38	T	28.02.23	Mostaghim
Level 1 Balcony Sections 3 & 4	A-39	T	28.02.23	Mostaghim
Bay Sections	A-40	T	28.02.23	Mostaghim
Amended Landscape Plans
Cover Page & Design Statement	DA001	5	24.02.23	Landform Studios
Landscape Ground Floor	DA100	5	24.02.23	Landform Studios
Landscape Level 1	DA200	4	24.02.23	Landform Studios
Landscape Level 3	DA200	2	24.02.23	Landform Studios
Typical Details and Outline Specification	DA900	2	24.02.23	Landform Studios
Supporting Documentation
Document Name				Date
Clause 4.6 Variation Request (Height) prepared by Urbis				27 February 2023
Supplementary Design Excellence Assessment prepared by Urbis				28 February 2023
Detailed Stage 2 Site Investigation prepared by JK Environments				14 June 2022
Data Gap Investigation (DGI) prepared by JK Environments				23 September 2022
Remedial Action Plan prepared by Redditus				7 November 2022
Sampling, Analysis and Quality Plan (SAQP) prepared by JK Environments				20 April 2022
Vapour Intrusion Risk Assessment (VIRA)				21 September 2022
Supplementary Traffic Assessment prepared by PDC Consultants				24 January 2023

Orders

49. The Court orders:

1. Leave is granted to the Applicant to rely on the amended documentation listed in Annexure A.

2. The Applicant’s written request pursuant to clause 4.6 of the Marrickville Local Environmental Plan 2011 (Marrickville LEP) seeking to justify contravention of the height of buildings standard under clause 4.3 of the Marrickville LEP has been considered and the necessary satisfaction has been formed under clause 4.6(4) of the Marrickville LEP.

3. The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $6000 within 28 days of the date of this order.

4. The appeal is upheld.

5. Development Application No. DA/2021/1167 for demolition of the existing structures and construction of a new 4-storey commercial building comprising business and office premises including remediation of the site and associated landscaping at 11 – 17 Hutchinson Street, St Peters, is determined by the grant of consent subject to conditions contained in Annexure A.

L Sheridan

Acting Commissioner of the Court

254147.22 Annexure A (315643, pdf)

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Decision last updated: 07 June 2023