Crossland v Inner West Council

[2019] NSWLEC 1626

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Crossland v Inner West Council [2019] NSWLEC 1626
Hearing dates:	Conciliation conference on 28-29 November 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders that: (1)   Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 1 of Annexure A. (2)   The applicant’s written request under clause 4.6 of the Leichhardt Local Environmental Plan 2013 (‘LLEP’) prepared by Andrew Darroch dated November 2019 seeking to justify the contravention of the floor space ratio development standard in clause 4.4 of the LLEP is upheld. (3)   The appeal is upheld. (4)   Development consent is granted to development application D/2018/428 for demolition of the existing dwelling house and construction of a part 2 part 4 storey attached dwelling with associated car parking, landscaping and fencing at 109A Louisa Road, Birchgrove subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – four storey dwelling – view loss – exceedance in FSR – cl 4.6 request for variation – streetscape – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	Belinda Crossland (Applicant) Inner West Council (Respondent)
Representation:	Counsel: J Lazarus SC (Applicant) G Christmas (Solicitor) (Respondent)   Solicitors: Hartley Solicitors (Applicant) Apex Planning & Environment Law (Respondent)
File Number(s):	2019/82164
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 2018/428 by Inner West Council (hereafter the Council) for the demolition of existing structures, and construction of a four storey dwelling house on Lot 1 DP 579427, also known as 109A Louisa Road, Birchgrove (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28-29 November 2019. I presided over the conciliation conference. There were three objectors whom spoke at the conciliation on issues relating to: privacy; overshadowing and solar access; height; (rear and side) setbacks; drainage; acoustic; view loss; and bulk and scale.

4. Prior to the conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA and the cl 4.6 written request to be relied upon.

5. Based on these amended plans and cl 4.6 written request, seeking a variation in floor space ratio (FSR), together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2018/428 with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 2018/428 with amended plans in Annexure A and conditions, as described in Annexure B.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Leichhardt Local Environmental Plan 2013 (LLEP). In addition, the Leichhardt Development Control Plan 2013 (LDCP) is of consideration to grant consent to the DA.

8. In compliance with the requirements of SEPP 55, the DA is supported by a Stage 2 contamination report and the conditions of consent provide for a remedial action plan. The parties agree the requirements of SEPP 55 are satisfied.

9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 920309S_03, dated 29 November 2019, is identified in the conditions of consent in compliance with the SEPP BASIX.

10. The parties agree that the relevant provisions of the LLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the R2 Low Density Residential zone. The proposed development is permissible in the zone.

11. The proposed development does however exceed the numeric requirement of cl 4.4 (FSR standard) of the LLEP. The parties explained that the FSR of the proposed development, is at a maximum of 1.048:1, which exceeds by 81.92m² (equivalent to 31%) the FSR standard (of 0.8:1), as specified in cl 4.4 of the LLEP. This exceedance in FSR occurs in the lowest portion (subsurface) of the dwelling, due to excavation to create a functional area for a gym (basement level 1) and studio (basement level 2), and to level out an area of previous excavation for the garage.

12. Therefore, it is accepted that a cl 4.6 written request for variation of FSR is required for further consideration of the proposed development, pursuant to cl 4.6 of the LLEP, and that the Court must also be satisfied of its consistency with cl 4.6 to grant consent to the DA.

13. The parties agree, that as explained in the cl 4.6 written request, the non-compliant FSR for the dwelling does not result in a development that is out of character with the local area and is not perceived from the streetscape. The proposed development responds to the sloping landform, previous excavation for the garage and the non-compliance, as designed does not result in amenity impacts to the proposed residents of the site or adjoining dwellings.

14. There are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the development standards for the proposed development. The parties agree that the non-compliance in FSR is not inconsistent with the zone objectives or relevant development standard.

15. The parties therefore agree that a variation of the FSR development standard, pursuant to cl 4.4 of the LLEP, is satisfied by the cl 4.6 written request, and that the requirements for a cl 4.6 variation of the FSR development standard are satisfied.

16. Having reviewed to the amended cl 4.6 written request, I agree that the cl 4.6 written request for the FSR standard variation addresses the requirements of cl 4.6(3) by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area and due to the perception of only the front of the dwelling from the street, the area resulting in FSR non-compliance will not be a dominant feature as viewed from the main street frontage or result in loss of views or amenity, particularly overshadowing or privacy to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and other relevant development standards.

17. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R2 zone) and the FSR (cl 4.4) standard, as established in the LLEP. The proposed exceedance is reasonable and limited to the lowest subsurface portion of the development, which does not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is in the public interest.

18. I am satisfied that the requirements of cl 4.6 of the LLEP have been addressed and that a variation in the FSR standard, as provided in cl 4.4, is appropriate.

19. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the LDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential view loss from adjoining residences and there are no privacy, solar access or acoustic impacts that should result in the refusal of the DA.

20. The parties agree that the requirements of the LDCP are complied with, based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the LDCP. During the initial notification period, three submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement.

21. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions.

22. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties.

23. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2018/428 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

24. 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.

25. The Court orders that:

1. Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 1 of Annexure A.

2. The applicant’s written request under clause 4.6 of the Leichhardt Local Environmental Plan 2013 (‘LLEP’) prepared by Andrew Darroch dated November 2019 seeking to justify the contravention of the floor space ratio development standard in clause 4.4 of the LLEP is upheld.

3. The appeal is upheld.

4. Development consent is granted to development application D/2018/428 for demolition of the existing dwelling house and construction of a part 2 part 4 storey attached dwelling with associated car parking, landscaping and fencing at 109A Louisa Road, Birchgrove subject to the conditions in Annexure A.

………………………

S Bish

Commissioner of the Court

Annexure A (122 KB, pdf)

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Amendments

20 February 2020 - Pursuant to UCPR r 36.17, the Table to Condition 1 of Annexure A to the Court's orders of 19 December 2019 has been corrected (granted by the Court on 19 February 2020). An updated copy of Annexure A is now attached.

Decision last updated: 20 February 2020