Emag Apartments Pty Ltd v Inner West Council

[2020] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:	Emag Apartments Pty Ltd v Inner West Council [2020] NSWLEC 1104
Hearing dates:	Conciliation conference 29 January 2020, and 20 February 2020
Date of orders:	10 March 2020
Decision date:	10 March 2020
Jurisdiction:	Class 1
Before:	Horton 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 4 of Annexure A. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $9,000 payable within 28 days of this agreement. (3) The Applicant’s written request under clause 4.6 of the Ashfield Local Environmental Plan 2013 seeking a variation of the development standards for height under clauses 4.3 of the Ashfield Local Environmental Plan 2013 is upheld. (4) The appeal is upheld. (5) Development consent is granted to development application DA2019/61 for tree removal and construction of an in-fill affordable residential flat building (comprising 4 storeys and 8 dwellings) services by basement car parking at 33 Gower Street, Summer Hill is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – affordable rental housing – boarding house development – residential apartment development – conciliation conference – agreement between the parties – orders
Legislation Cited:	Architects Act 2003 Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Emag Apartments Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2019/174640
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application DA2019/61 seeking consent for the removal of a tree and construction of an in-fill affordable residential flat building (comprising 4 storeys and 8 dwellings) serviced by basement car parking at 33 Gower Street, Summer Hill.

2. 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 29 January 2020. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. I adjourned the conciliation conference to allow the Applicant to prepare amended plans, and on 20 February 2019 I further adjourned the conciliation conference to allow for the terms of an agreement to be finally settled by the parties.

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 27 February 2020.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. 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 s34 agreement.

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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the R3 Medium Density Residential zone as identified by the Ashfield Local Environmental Plan 2013 (ALEP). The provisions of the R3 zone permit boarding house development with consent that is consistent with the objectives of the zone, which are as follows

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

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

2. The site is adjacent to a heritage item (I189) at No 42 Liverpool Road, listed for its local heritage significance in Schedule 5 of the ALEP and it is on this basis that the provisions of cl 5.10(4) require the Court consider the effect of the proposed development on the heritage significance of the item. On the basis of the amended plans that incorporate the changes agreed between the parties, I am satisfied that the proposed development will not adversely impact the heritage item.

3. Pursuant to Clause 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), I have considered, and accept, that the design amendments incorporated in to the amended plans result in a development that is compatible with the character of the local area.

4. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations) requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I rely on the statement provided by the architect, Nicholas Nasser, in relation to the provisions of the EPA Regulations, and to satisfy cl 28(2)(b) of SEPP 65.

5. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. I am satisfied, on the basis of the Statement of Environmental Effects, that the land does not require remediation.

6. Clause 4.3 of the ALEP provides for a maximum building height of 12.5m. The parties are agreed that the building exceeds the height control by 700m when measured at the lift overrun structure, and the Applicant relies on a written request prepared by Weir Phillips dated 4 February 2020 pursuant to cl 4.6 of the ALEP to justify the contravention of the height control, wherein the objectives are as follows:

4.3   Height of buildings

(1)  The objectives of this clause are as follows—

(a) to achieve high quality built form for all buildings,

(b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes,

(c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings,

(d) to maintain satisfactory solar access to existing buildings and public areas.

7. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the ALEP for the following reasons:

• Compliance with the development standard is unreasonable or unnecessary as the objectives of the height control at cl 4.3, at [(6)], of the ALEP are achieved notwithstanding the non-compliance with the standard. Specifically, the proposal achieves a high quality built form which is consistent with adjacent development at 35 Gower Street, does not impact unacceptably upon the solar access of adjacent properties or any public spaces, and as it is located mid-block and is surrounded on all sides by land with the same zoning, FSR and height limits, the site is only called upon to provide a transition in consideration of 42 Liverpool Road, which is achieved by the rear setback which aligns to the boundary of No’s 44 and 42 Liverpool Road.

• Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the height control as the exceedance of the height control by the lift overrun is caused by the provision of universal access to 100% of the dwellings for those with lesser mobility and would facilitate aging in place. This is achieved by, and so the exceedance directs results from, a lift with side egress serving each dwelling to the rear, including the top most dwelling. By so doing, I am satisfied that the proposed development provides for the housing needs of the community, especially those with limited mobility or seeking to age in place, within a medium density residential environment.

• On the basis of the above, I am satisfied that the proposed development is consistent with the objectives of the development standard, at [(6)], and the objectives of the zone, at [(1)], and so is in the public interest.

7. As the jurisdictional prerequisites to the grant of consent have been addressed I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. 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.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the Applicant to amend the development application and rely on the amended plans listed in Condition 4 of Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $9,000 payable within 28 days of this agreement.

3. The Applicant’s written request under clause 4.6 of the Ashfield Local Environmental Plan 2013 seeking a variation of the development standards for height under clause 4.3 of the Ashfield Local Environmental Plan 2013 is upheld.

4. The appeal is upheld.

5. Development consent is granted to development application DA2019/61 for tree removal and construction of an in-fill affordable residential flat building (comprising 4 storeys and 8 dwellings) services by basement car parking at 33 Gower Street, Summer Hill is approved subject to the conditions in Annexure A.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (215 KB)

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Decision last updated: 10 March 2020