Environa Studio Pty Ltd v Inner West Council

[2020] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environa Studio Pty Ltd v Inner West Council [2020] NSWLEC 1147
Hearing dates:	Conciliation conference on 20 March 2020
Date of orders:	27 March 2020
Decision date:	27 March 2020
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 4 of Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $5,500 payable within 28 days of this agreement. (3) The applicant’s written requests under clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking a variation of the development standards for height and floor space ratio under clauses 4.3 and 4.4 of the Marrickville Local Environmental Plan 2011 are upheld. (4)   The appeal is upheld. (5)   Development consent is granted to development application DA201800055 for demolition of existing building, construction of a part 4 part 5 storey mixed use development comprising of carparking, 33 boarding house rooms, managers room, retail / commercial space and internal and external communal open spaces at 112-116 Parramatta Road, Stanmore is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – retail and commercial space – amenity – character – FSR and height standard non-compliance – cl 4.6 variation request - 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 (Infrastructure) 2007
Texts Cited:	Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Environa Studio Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: A Cowper (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent)
File Number(s):	2019/22828
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 201800055 by Inner West Council (hereafter the Council) on the direction of the Inner West Planning Panel (the Panel) for the demolition of existing structures, and construction of a part four, part five storey boarding house of 33 rooms with parking on Lots 2, 3 and 4 Section E1 DP 3475, also known as 112-116 Parramatta Road, Stanmore (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 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 March 2020. I presided over the conciliation conference. There were no objectors whom spoke at this conciliation. It is however acknowledged that five objectors spoke and provided written submission at a previous conciliation arranged by the Court, and their issues have been considered by the parties in the making of this agreement.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA and the cl 4.6 written request for variation of the Floor Space Ratio (FSR) and height development standards, to be relied upon.

5. Based on these amended plans and cl 4.6 written requests, 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 201800055 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 201800055 with conditions, as described in Annexure A.

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 (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); and Marrickville Local Environmental Plan 2011 (MLEP). In addition, the Marrickville Development Control Plan 2011 (MDCP) is of consideration to grant consent to the DA.

8. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans and the conditions of consent which address the relevant requirements for consideration. The proposed development provides sufficient parking for a 33 room boarding house with a manager, and is consistent with the character of the local area. The parties agree that the requirements of SEPP ARH are satisfied, specifically cll 29(2) and 30A.

9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 895971M_03, dated 21 August 2018, relevant to the proposed development is identified in the conditions of consent in compliance with the SEPP BASIX.

10. With regards to SEPP Infrastructure, the parties are satisfied that the proposed development complies, and specifically cl 101, with the rear lane access as proposed.

11. The site is located within the B4 Mixed Use Zone, as described in the MLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the MLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The objectives of the zone are satisfied.

12. The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) and cl 4.4 (FSR standard) of the MLEP. All other relevant development standards are satisfied.

13. The parties explained that the height of the proposed development exceeds by 1.927m (13.76%) the height standard of 14m, as specified in cl 4.3 of the MLEP. This exceedance in height occurs primarily in the central and northern portions of the building, due to projection of the ventilation shaft for the commercial space; and lift overrun and roof on the upper level to allow roof access to communal space for the boarding house residents.

14. In addition, the proposed development results in an exceedance of the FSR standard of the MLEP pursuant to cl 4.3 (of 1.5:1) by 16.35%, with an FSR of 1.745:1.

15. Therefore, it is accepted by the parties that a cl 4.6 written request for variation of the height and FSR standards is required for further consideration of the DA, pursuant to cl 4.6 of the MLEP, and that the Court must be satisfied of its consistency with the requirements of cl 4.6 to grant consent to the DA.

16. The cl 4.6 (height) written request explains that the exceedance in the height standard does not result in a development that is out of character with the local area and is not perceived adversely from the streetscape. The proposed development responds to the other buildings in the local area, which include four storey street walls.

17. According to the cl 4.6 request, there are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the (height) development standard for the proposed development. The proposed development is not inconsistent with the zone objectives or relevant development standard. The proposed building form provides an appropriate transition between the lower scale development and heritage conservation area south of Corunna Lane.

18. The proposed (height of the) development satisfies the objectives of the zone and the height standard. As the proposed development is in character with the local area, results in no adverse amenity impacts and satisfies these relevant objectives, compliance with the height standard would be both unreasonable and unnecessary.

19. The cl 4.6 request states that a variation of the height development standard, pursuant to cl 4.3 of the MLEP is therefore satisfied, and flexibility of the standard is justified.

20. Having reviewed the cl 4.6 written request, I agree that the cl 4.6 written request for the height 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 visual perception of the front of the building from the street, the area of the building resulting in height non-compliance is predominantly at the primary street frontage and does not result in loss of amenity, particularly overshadowing or privacy to adjoining properties. There are therefore sufficient environmental planning grounds.

21. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for B4 zone) and the height (cl 4.3) standard, as established in the MLEP. The proposed exceedance is reasonable and limited to the central and northern portion of the development, away from residents whom raised objections. It does not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is therefore in the public interest.

22. I am satisfied that the requirements of cl 4.6 of the MLEP have been addressed and that a variation in the height standard, as provided in cl 4.3, is appropriate.

23. With regards to the cl 4.6 written request for variation of the FSR standard (cl 4.4 of the MLEP), the result of the breach is explained as being due to massing of the building towards the northern portion of the site to address issues raised by residents south of the site, adjoining Corunna Lane. The massing in this portion of the site does not result in additional overshadowing to adjoining properties and provides an appropriate transition to other developments. The cl 4.6 request explains that there are sufficient environmental planning grounds to vary the standard as there are no adverse amenity impacts, the design responds to the character of the local area and provides affordable housing to the community.

24. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for B4 zone) and the FSR (cl 4.4) standard, as established in the MLEP. The proposed exceedance is reasonable and predominantly as a result of northern building massing that 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.

25. Having reviewed the 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 massing to the front of the building along Parramatta Road, which is predominately a commercial area, the resulting FSR non-compliance addresses amenity issues, particularly overshadowing or privacy to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development is responsive to its surrounding environment.

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

27. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the MDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would result in the refusal of the DA.

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

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

30. Based on the amended plans and supporting documents to the DA including cl 4.6 written requests for variation of FSR and height standards, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties.

31. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 201800055 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

32. 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.

33. 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. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $5,500 payable within 28 days of this agreement.

3. The applicant’s written requests under clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking a variation of the development standards for height and floor space ratio under clauses 4.3 and 4.4 of the Marrickville Local Environmental Plan 2011 are upheld.

4. The appeal is upheld.

5. Development consent is granted to development application DA201800055 for demolition of existing building, construction of a part 4 part 5 storey mixed use development comprising of carparking, 33 boarding house rooms, managers room, retail / commercial space and internal and external communal open spaces at 112-116 Parramatta Road, Stanmore is approved subject to the conditions in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (159 KB)

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Decision last updated: 27 March 2020