D-Studio Architects Pty Ltd v Inner West Council

[2024] NSWLEC 1096

Land and Environment Court

New South Wales

Medium Neutral Citation:

D-Studio Architects Pty Ltd v Inner West Council [2024] NSWLEC 1096

Hearing dates:

Conciliation conference held 26 February 2024

Date of orders:

06 March 2024

Decision date:

06 March 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/2023/0159 and rely upon the amended plans referred to in condition 1 at Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA/2023/0159 (as amended) for alterations and additions to the existing building to establish two semi-detached dwellings, comprising partial demolition to the existing dual occupancy, construction of two semi-detached dwellings and amended Torrens title subdivision at 48 Park Avenue, Ashfield, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached dwellings – Torens title subdivision – cl 4.6 written request – minimum subdivision lot size – floor space ratio – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Inner West Local Environmental Plan 2022, cll 2.3, 4.1, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3

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

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

Texts Cited:

NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

D-Studio Architects Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2023/238698

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by D-Studio Architects Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/2023/0159 (the DA) by Inner West Council (the Respondent). At the time of its lodgment, the DA sought consent for alterations and additions to an existing dual occupancy, including partial demolition, and the construction of two semi-detached dwellings and amended Torrens title subdivision, at 48 Park Avenue, Ashfield (the site).

2. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 February 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of note, the DA has been amended by agreement between the parties to resolve each of the contentions initially raised by the Respondent, which include adverse heritage impacts, exceedance of the development standard for floor space ratio (FSR), inconsistency with the development standard for minimum subdivision lot size, detrimental design, streetscape, bulk and scale, inconsistency with the desired future character, privacy and cross viewing impacts, overshadowing impacts and an uncharacteristic proposed subdivision pattern amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site and its context thereby resolving each of the Respondent's contentions. In summary, these amendments improve the presentation of the proposed dwelling to the primary streetscape, refine the proposed architectural elements, details and colours to resolve heritage impacts, and reduce the proposed bulk and scale of the DA to reduce cross viewing and overshadowing impacts off site.

6. 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 amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 22 March to 5 April 2023. Two submissions were received by the Respondent raising concerns for the proposed character and contextual fit of the DA, its bulk and scale, visual and acoustic privacy impacts, overshadowing impacts, and concerns for the proposed FSR exceedance.

10. The parties agree, and I am satisfied, that the amended DA resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Inner West Local Environmental Plan 2022 (IWLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential and the proposed development - characterised as semi-detached dwellings - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the IWLEP, the amended DA is consistent with the R2 Low Density Residential zone objectives, which include to provide for the housing needs of the community within a low density residential environment and to provide residential development that maintains the character of built and natural features in the surrounding area.

13. The parties agree, and I am satisfied, that all principal development standards of the IWLEP have been met by the amended DA with the exception of cl 4.1 - Minimum subdivision lot size and cl 4.4 - FSR.

14. In such an instance, cl 4.6(3) of the IWLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

15. Clause 4.6(4) of the IWLEP requires the consent authority to be satisfied that each of the Applicant’s written requests has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

16. Additionally, cl 4.6(4)(b) of the IWLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

17. As required by cl 4.6 of the IWLEP, the Applicant has provided a written request for each of the two proposed lots (prepared by Navon Planning and dated November 2023) seeking to vary the development standard for minimum subdivision lot size as set out at cl 4.1 of the IWLEP.

18. The parties agree, and I am satisfied, that these two written requests each adequately justify the proposed variance to the minimum subdivision lot size development standard of 500sqm for the following reasons:

1. The amended DA proposes a lot size at 48 Park Avenue of 242sqm, varying the development standard by 258sqm and therefore representing a variation of approximately 51.6%.

2. Similarly, the amended DA proposes a lot size at 48A Park Avenue of 170sqm, varying the development standard by 330sqm and therefore representing a variation of approximately 66%.

3. Relevantly, the DA has been amended during the conciliation conference to resolve the Respondent’s contentions, particularly those related to adverse heritage impacts, excessive bulk and scale, inconsistency with the desired future character, privacy and cross viewing impacts.

4. The existing two-storey dual occupancy at 48 Park Avenue is currently situated across two lots, which the proposed subdivision will resolve. The amended DA proposes its retention, alteration and additions in a form that is agreed to be appropriate to the heritage conservation area.

5. The proposed lot at 48A Park Avenue accommodates a second semi-detached dwelling in a form, and of a scale, that is agreed to be consistent with the desired future character of the area.

6. The amended DA is agreed to mitigate against off site impacts of cross viewing and overshadowing.

7. The objectives of the IWLEP Zone R2 Low Density Residential land use zone include to provide for the housing needs of the community within a low density residential environment and to provide residential development that maintains the character of built and natural features in the surrounding area. I am satisfied the amended DA meets these objectives.

8. The objectives of cl 4.1 of the IWLEP include to ensure lot sizes cater for a variety of development, to ensure lot sizes do not result in adverse amenity impacts, to ensure lot sizes deliver high quality architectural, urban and landscape design, and to provide a pattern of subdivision that is consistent with the desired future character. I am satisfied the amended DA meets these objectives.

19. Consequently, I am satisfied the Applicant’s two cl 4.6 written requests adequately justify the proposed variations to the minimum subdivision lot size development standard, and I find to uphold these written requests.

20. Similarly, the Applicant has provided a written request for each of the two proposed lots (prepared by Navon Planning and dated November 2023) seeking to vary the development standard for FSR as set out at cl 4.4 of the IWLEP.

21. The parties agree, and I am satisfied, that these written requests adequately justify the proposed variation to the FSR development standard of 0.5:1 for the following reasons:

1. The amended DA proposes a total FSR of 0.58:1 at 48 Park Avenue, equating to an exceedance of 19.9sqm of gross floor area and representing a variation to the FSR development standard of approximately 16.4%.

2. Similarly, the amended DA proposes a total FSR of 0.6:1 at 48A Park Avenue, equating to an exceedance of 17.3sqm of gross floor area and representing a variation to the FSR development standard of approximately 20.4%.

3. The site comprises an existing two-storey dual occupancy, at 48 Park Avenue, of a form and in a location which allows for the introduction of a second semi-detached dwelling on the site. The agreed design of the DA results in a pair of semi-detached dwellings that are consistent with the character of the locality, sited in a manner that mitigates against heritage impacts upon the heritage conservation area.

4. The FSR exceedance brings with it no material increase in impacts or diminution of amenity enjoyed by neighbouring properties, adequately resolving earlier concerns for cross viewing, acoustic privacy and off site overshadowing.

5. The objectives of the IWLEP Zone R2 Low Density Residential land use zone include to provide for the housing needs of the community within a low density residential environment and to provide residential development that maintains the character of built and natural features in the surrounding area. I am satisfied the amended DA meets these objectives.

6. The objectives of cl 4.4 of the IWLEP include to establish a maximum FSR to enable appropriate development density, to ensure development density reflects its locality, 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. I am satisfied the amended DA meets these objectives.

22. Consequently, I am satisfied the Applicant’s two cl 4.6 written requests adequately justify the proposed variations to the FSR development standard, and I find to uphold these written requests.

23. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the IWLEP - Heritage conservation - the site does not comprise a listed heritage item, however it is located within the Park Avenue Heritage Conservation Area and is situated within close proximity to a number of listed heritage items.

24. The Applicant has provided a letter, prepared by heritage consultants Heritage 21, dated March 2023, that addresses the impacts the DA has on the heritage conservation area and upon nearby heritage items. The parties agree, and I am satisfied, that the amended DA creates no unreasonable detrimental heritage impacts.

25. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the IWLEP - Acid sulfate soils - the site is not mapped within an acid sulfate soils area.

26. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the IWLEP - Earthworks. Proposed earthworks are minor in nature and agreed conditions of consent are imposed to address the matters set out at cl 6.2(3).

27. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the IWLEP - Stormwater management - the amended DA provides for stormwater drainage and a rainwater tank along with permeable areas of landscape, and agreed conditions of consent are imposed to address the matters set out at cl 6.3(3).

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

29. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index — BASIX) 2004. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), two BASIX certificates (numbers A443418_03 and 1267038S_03, both dated 28 November 2023) have been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

30. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

31. The Court notes that:

1. Pursuant to s 38 of the EPA Reg, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 14 February 2024.

Orders

32. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/2023/0159 and rely upon the amended plans referred to in condition 1 at Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application DA/2023/0159 (as amended) for alterations and additions to the existing building to establish two semi-detached dwellings, comprising partial demolition to the existing dual occupancy, construction of two semi-detached dwellings and amended Torrens title subdivision at 48 Park Avenue, Ashfield, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Annexure A

Decision last updated: 06 March 2024