Fifty50 Investments Pty Ltd v Inner West Council

[2019] NSWLEC 1339

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fifty50 Investments Pty Ltd v Inner West Council [2019] NSWLEC 1339
Hearing dates:	Conciliation conference on 5 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [15] below
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichardt Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Fifty50 Investments Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: N Sandstrom, Mills Oakley (Applicant) G Christmas, Apex Planning & Environment Law (Respondent)
File Number(s):	2018/306815
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant seeks development consent for alterations and additions to an existing building to create a mixed-use development at 359-361 Darling Street, Balmain. The proposal involves the retention of the existing retail tenancies at ground level and the construction of two additional levels of residential accommodation above the retail use and set back behind the parapet of the existing structure.

2. The appeal arises following the Council’s decision to refuse consent to the applicant’s original application. It is brought pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. In accordance with the Court’s usual practice, the proceedings were referred to a Court-arranged conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 July 2019. I presided over that conciliation conference. At that time, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting conditional development consent to an amended application which includes the following:

“a. Amended architectural plans prepared by BJB Architects (Rev P), dated 26 May 2019 which incorporate the following changes from the originally submitted Development Application drawings (Rev J):

i.   Total reduction of two (2) residential units across the development;

ii.   Redesign of northern wing (rear) to reduce overall height by 350mm and achieve a more sympathetic design aesthetic;

iii.   Deletion of all originally proposed alterations to the heritage facade and parapets on Darling Street and Rowntree Street;

iv.   Increased setbacks to all proposed built form over southern wing (front) on levels one and two;

v.   Significant reduction in proposed gross floor area of 89.4sqm accounting for a reduction in FSR from 1.78:1 to 1.52:1;

b.    Amended clause 4.6 request to vary FSR control contained in clause 4.4A of the Leichardt Local Environmental Plan 2013 (LLEP 2013) prepared by Willowtree Planning Pty Ltd, dated July 2019;

c.   Amended 3D photomontages prepared by BJB Architects (Rev P), dated 29 May 2019;

d. Amended BASIX certificates for units 1 – 3; and

e. View loss assessment prepared by BJB Architects, dated 29 May 2019”

4. 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 development application subject to conditions. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

5. The parties identified the jurisdictional prerequisites of relevance to include cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP 2013) to vary the FSR control contained in cl 4.4A of the LLEP 2013. It has been explained to me how the jurisdictional prerequisite has been satisfied by the written submission prepared by Willowtree Planning Pty Ltd dated July 2019.

6. The applicant’s written request to vary the standard refers to the fact that the proposed development is subject to cl 4.4A – ‘Exception to maximum floor space ratio for active street frontages’ of the LLEP 2013. It is agreed between the parties that the application satisfies the criteria set out in cl 4.4A(3) of the LLEP 2013.

7. The maximum FSR for the site is 1.5:1.

8. The proposed development does not comply with the applicable FSR control prescribed by cl 4.4A of the LLEP 2013. A written request to vary the development control is submitted with the amended application pursuant to cl 4.6 of the LLEP 2013.

9. The amended application seeks consent for a mixed-use development that proposes an FSR of 1.52:1 – a variation of 1.4%.

10. The respondent informs me that it is satisfied the written request provided in support of the non-compliance with the FSR development standard demonstrates that:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, (cl 4.6(3)(a)); and

2. that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

11. The respondent is also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard contained in cl 4.4A and the objectives of the B2 zone in which the development is proposed to be carried for the reasons set out in the clause 4.6 written request (cl 4.6(4)(a)(ii)).

12. In that regard, the respondent accepts that the development is compliant with the aims and controls of cl 6.11A ‘Residential accommodation in Zone B1 and Zone B2’ of the LLEP 2013 in respect of which the respondent is satisfied that the proposed building is:

1. a mixed-use development, including residential accommodation;

2. provides an active street frontage; and

3. is compatible with the desired future character of the area in relation to its bulk, form, uses and scale.

13. The respondent is also satisfied that the amended application provides a sympathetic and appropriate heritage response and satisfies the provisions of cl 5.10 ‘Heritage Conservation’ of the LLEP 2013.

14. Based on the above, the parties submit that the orders as agreed between the parties are a decision that the Court could have made in the proper exercise of its functions. It is also my view, after a consideration of the written request, 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. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. The Court orders:

1. Leave is granted to the Applicant to rely on the following amended architectural plans:

Plan Reference	Drawn By	Issue	Date
A02 – site plan / BASIX report	BJB Architects	P	29.05.2019
A03 – Ground floor plan	BJB Architects	P	29.05.2019
A04 – First floor plan	BJB Architects	P	29.05.2019
A05 – Second floor plan	BJB Architects	P	29.05.2019
A06 – Roof plan	BJB Architects	P	29.05.2019
A07 - Section	BJB Architects	P	29.05.2019
A08 - Section	BJB Architects	P	29.05.2019
A09 – North elevation	BJB Architects	P	29.05.2019
A10 – South elevation	BJB Architects	P	29.05.2019
A11 – East elevation	BJB Architects	P	29.05.2019
A12 – West elevation	BJB Architects	P	29.05.2019
A14 – Site management plan	BJB Architects	P	29.05.2019
A101 – Demolition plan ground floor	BJB Architects	P	29.05.2019
A102 - Demolition plan first floor and roof	BJB Architects	P	29.05.2019
A103 – Demolition plan section	BJB Architects	P	29.05.2019
A104 – Demolition plan section	BJB Architects	P	29.05.2019
A105 – Demolition plan north and south elevation	BJB Architects	P	29.05.2019
A106 – Demolition plan east elevation	BJB Architects	P	29.05.2019
A107 – Demolition plan west elevation	BJB Architects	P	29.05.2019
Amended Schedule of Materials and Finishes	BJB Architects	P	02.07.2019

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $2,500.00 within 28 days of the date of these orders.

3. The Applicant’s written request under clause 4.6 of the Leichardt Local Environmental Plan 2013, prepared by Willowtree Planning and dated July 2019 (contained at Annexure “B”), for the non-compliance with the floor space ratio development standard in clause 4.4A(3) is upheld.

4. The appeal is upheld.

5. Development consent is granted to D/2018/259 to carry out alterations and additions to existing shop building to result in a mixed use development comprising two shops at ground floor level and three (3) units in two levels of residential accommodation above and includes removal of tree in the rear yard of 361 Darling Street, Balmain, parking for four vehicles and demolition works at 359-361 Darling Street, Balmain subject to the conditions at Annexure “A”.

…………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (168 KB)

Annexure B (4.83 MB)

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Decision last updated: 19 July 2019