Emag Apartments Pty Ltd v Inner West Council

[2020] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation:

Emag Apartments Pty Ltd v Inner West Council [2020] NSWLEC 1589

Hearing dates:

Conciliation conference on 2 November 2020

Date of orders:

27 November 2020

Decision date:

27 November 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1)   The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 thrown away in the proceeding in the agreed amount of $5,000.

(3)   The appeal is upheld.

(4)   Development application DA/2019/001162 seeking development consent to demolish the existing dwelling house and construct a four-storey boarding house containing 18 boarding rooms plus 1 communal room and basement car parking, at premises known as 11A Tupper Street, Enmore is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Marrickville Local Environmental Plan 2011

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy 55—Remediation of Land

Category:

Principal judgment

Parties:

Emag Apartments Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Allam (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/69982

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Emag Apartments Pty Ltd (Applicant) against the Respondent’s refusal of their development application DA/2019/00162. The amended development application seeks consent for the demolition of the existing dwelling house and to construct a four-storey boarding house containing 18 rooms, a communal room and basement car parking. The development is proposed at 11A Tupper Street, Enmore.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979(the LEC Act) between the parties, which was held on 2 November 2020. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. Following the conciliation, the Applicant prepared amended plans. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. Pursuant to the Marrickville Local Environmental Plan 2011 (LEP 2011), the subject site is zoned R1 General Residential. Boarding houses are permissible in the zone and demolition is permissible pursuant to cl 2.7 of LEP 2011. In determining the development application, I have had regard to the objectives of the zone.

2. The development application complies with the development standards for maximum height and floor space ratio in LEP 2011.

3. The site is mapped as partially affected by Class 5 Acid Sulfate Soils, however the site is not land that is below 5 metres Australian Height Datum. On this basis, an acid sulfate soil management plan pursuant to cl 6.1(3) of LEP 2011 is not required.

4. Claue 6.5 of LEP 2011 applies as the subject site is located within the 20-25 Aircraft Noise Exposure Forecast zone (ANEF) contour zone.. Residential uses are conditionally acceptable in the 20-25 ANEF zone. In determining the development application, I have considered the matters listed at cl 6.5(3) of LEP 2011. The development consent includes a condition requiring compliance with the relevant provisions of Australian Standard AS 2021:2015 Acoustics – Aircraft noise intrusion – Building siting and construction.

5. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy 55—Remediation of Land, I accept that the likelihood of contamination is low. 

6. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

7. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as a boarding house. The division applies to the site as the site is zoned R1 General Residential: cl 26 of SEPP ARH.

8. The development is compliant with the standards at cl 30 of SEPP ARH.

9. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area.

10. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 thrown away in the proceeding in the agreed amount of $5,000.

3. The appeal is upheld.

4. Development application DA/2019/001162 seeking development consent to demolish the existing dwelling house and construct a four-storey boarding house containing 18 boarding rooms plus 1 communal room and basement car parking, at premises known as 11A Tupper Street, Enmore is approved subject to the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (280049, pdf)

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Decision last updated: 27 November 2020