Furusato Pty Ltd v Inner West Council

[2023] NSWLEC 1623

Land and Environment Court

New South Wales

Medium Neutral Citation:

Furusato Pty Ltd v Inner West Council [2023] NSWLEC 1623

Hearing dates:

Conciliation conference held on 21 August and 4 September 2023

Date of orders:

20 October 2023

Decision date:

20 October 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away by the amendment of the DA pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,500 within 14 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No DA22/0733, as amended, for alterations and additions to two adjoining terraces, including restoration of the original façade, new street verandah to the Darling and Johnston Street frontages, retention of existing corner ground floor retail space and basement, provision of a dwelling and residential unit, new landscaping and Torrens title subdivision of the property at 54 & 56 Darling Street, Balmain East, NSW subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – mixed use development – heritage terraces – heritage precinct – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 4.1,4.1A, 4.4, 4.4A, 4.6 5.3, 5.10, 6.2, 6.3, 6.13, 6.21

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

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

Sydney Regional Environmental Plan (Biodiversity and Conservation) 2021, Ch 6

Category:

Principal judgment

Parties:

Furusato Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/67256

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Inner West Council (the Council) of DA22/0733 (Development Application) for alterations and additions to two adjoining terraces, including restoration of the original façade, new street verandah to the Darling and Johnston Street frontages, retention of existing corner ground floor retail space and basement, provision of a dwelling and a residential unit, new landscaping and provision of street tree and Torrens title subdivision of the property at 54 & 56 Darling Street, Balmain East, NSW, (the Site).

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 site and at Council’s Chambers. 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 and which addressed the Council’s contentions. This decision involved Council agreeing to an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The Council considered that the amendment was not minor and the Applicant agreed to an order for costs thrown away under s 8.15(3) EPA Act in the sum of $15,500 payable within 14 days of the date of the Court’s orders.

4. The Amended Plans provide for a greater setback to Johnston Street, internal modification, the provision of additional deep soil planting areas by reduction of basement and other ancillary changes to materiality and finishes.

5. The Applicant also seeks to amend the Development Application by the subdivision of the Site into 2 lots so that the dwelling house component will satisfy the definition of an “attached dwelling”.

6. Other documents have also been prepared by the Applicant to resolve contentions including structural reports, geotechnical reports and a draft plan of subdivision (the Documents).

7. The Applicant was granted leave to rely on the amended plans and additional Documents central to the s 34 agreement.

8. The agreed position is for the Court to uphold the Class 1 appeal and grant consent to the amended Development Application with conditions.

9. Section 34(3) of the LEC Act requires me to 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.

10. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional prerequisites of relevance to the proceedings in an Agreed Statement filed on 6 September 2023 (the Statement). The statutory planning controls relevant to the Site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

11. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

Inner West Local Environmental Plan 2022

Permissibility

12. The Site is zoned E1 Local Centre pursuant to the Inner West Local Environmental Plan 2022 (IWLEP) and there are a range of permissible uses in the E1 zone not including dwelling house or attached dwelling.

13. The Amended Plans and Documents seek approval of a Torrens title subdivision of the Site into two lots. The Lots are marked on the draft plan of subdivision and include:

1. the lot encompassing a shop top housing development on the corner of Darling Street and Johnston Street (the Johnston Lot); and

2. the lot encompassing a dwelling house fronting Darling Street and wrapping around to Johnston Street (the Darling Lot).

14. Each lot is given the name as at [13] above to allow for easy identification.

15. In respect of the Johnston Lot, shop top housing development is permissible in the E1 zone and thus this part of the amended development does not raise a permissibility issue. However, cl 6.13 Residential accommodation in Zones E1, E2 and MU1 of the IWLEP applies.

16. The objective of cl 6.21 states,

…

(1) The objective of this clause is to control the location of residential accommodation permitted in the zones to which this clause applies to support the vitality of local centres.

…

17. Clause 6.13(2) states that this clause applies to development on E1 zoned land.

18. Clause 6.13(3) outlines those matters that a consent authority must be satisfied of prior to the grant of development consent. These include:

(a) is mixed use development, and

(b) will have an active street frontage, and

(c) is compatible with the desired character of the area in relation to its bulk, form, uses and scale.

19. The parties agree and the Court is satisfied that the Johnston Lot contains a mixed-use development, will have an active street frontage and is compatible with the desired character of the area in relation to its bulk, form, scale and use.

20. In respect of the Darling Lot, dwelling houses are prohibited in the E1 zone. However, the IWLEP includes cl 5.3 Development near zone boundaries.

21. The objective of cl 5.3 is stated in subcl 5.3(1) as follows:

(1) The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone.

22. Clause 5.3(2) provides for a 25 metre max separation between the subject property and the relevant zone. The parties agree that the Darling Lot is within 25 metres of an R1 zone which would permit attached dwellings.

23. Clause 5.3(3) prescribes zones which are excluded from the benefit of this clause and the parties agree that the E1 zone is not included in this clause.

24. Clause 5.3(4) provides for those matters that the consent authority must be satisfied of, to accept a development for a prohibited use in a zone which is permitted in the zone near the zone boundary. This clause states:

(4) Despite the provisions of this Plan relating to the purposes for which development may be carried out, development consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that—

(a) the development is not inconsistent with the objectives for development in both zones, and

(b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land.

25. In respect of cl 5.3(4)(a), the parties agree and the Court is satisfied that the proposed development of an attached dwelling on the Darling Lot is not inconsistent with the zone E1 and zone R1 objectives.

26. In respect of clause 5.3(4)(b), the parties agree and the Court is satisfied that the carrying out of development in the form of an attached dwelling is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land noting that amongst other things there are proximate residential uses, the typology of development continues a long standing residential use and the development allows for the restoration of a longstanding building form which will benefit the community and the heritage conservation area.

27. The Court is satisfied that the proposed mixed use development as amended falls within cl 5.3 of the IWLEP and is permissible with consent.

Clause 4.1 Minimum Subdivision Lot Size

28. The Proposed Development as amended seeks for the subdivision of the Site into two separate lots. Clause 4.1A does not have a minimum lot size provision for the Site. On the basis that the Site is not marked on the Lot Size Maps in the IWLEP there is no jurisdictional bar to the approval of the Torrens title subdivision of the Site.

Clause 4.4 Floor Space Ratio

29. The Proposed Development as amended by the Amended Plans and Documents results in a Floor Space Ratio (FSR) breach for each of the Johnston Lot and the Darling Lot. Clause 4.4 and the associated maps in the IWLEP permits a FSR on the Site of 1.0:1.

30. However, cl 4.4A provides for an exception to the FSR development standard for E1 zones.

31. Clause 4.4A(1) provides:

(1) The objective of this clause is to provide floor space incentives for mixed use development incorporating active street frontages in Zone E1 Local Centre.

32. Clause 4.4A(2) states that this clause only applies to those lots marked as Area 1 in the Floor Space Ratio map which includes the Site.

33. Clause 4.4A(3) permits a maximum FSR of 1.5:1 for building that satisfy the following requirements:

(3) The maximum floor space ratio for a building on land to which this clause applies is 1.5:1 if the consent authority is satisfied the building—

(a) will have an active street frontage, and

(b) is mixed use development that includes residential accommodation, and

(c) is compatible with the desired character of the area in relation to its bulk, form, uses and scale.

34. The parties agree and the Court accepts that the Johnston Lot benefits from this clause of the IWLEP but that the Darling Lot does not benefit from same. In this regard the permissible FSR for the Johnston Lot is 1.5:1 and the Darling Lot is 1:1.

35. Each of the Johnston Lot and the Darling Lot still exceed their permissible FSR. On this basis a cl 4.6 request has been prepared by GSA Planning for each lot and is dated August 2023.

36. The parties agree that each of the cl 4.6 requests prepared by GSA Planning deal with the relevant requirements of a test under cl 4.6 and provides adequate environmental planning grounds to support the proposition that compliance with the development standard is unreasonable and unnecessary.

37. The Court accepts the parties position that the Applicant’s written requests under cl 4.6 of the IWLEP to vary the development standard under cl 4.4 of the IWLEP for the proposed lots to be known as 54 Darling Street, Balmain East and 56 Darling Street, Balmain East should be upheld.

Other Matters under the IWLEP

Heritage Conservation

38. In respect of cl 5.10 of the IWLEP, the parties are satisfied that the matters the subject of this clause have been dealt with by the provision of a Heritage Impact Statement prepared by Urbis dated 12 August 2022 (the HIS) and relevant conditions of consent including condition 30.

39. The Site is not an item of environmental heritage but is located within the Balmain East heritage conservation area (HCA). The HIS gives consideration to the location of the Site including its proximity to listed heritage items.

40. The Court is satisfied that the Amended Plans and documents together with condition 30 ensure the protection of the elements of the existing building that add to the HCA and ensure the character and setting of the HCA is unaffected.

41. I have read the parties Agreed Jurisdictional Statement concerning the following clauses and agree with the parties conclusions that no jurisdictional impediments arise under these further clauses of the IWLEP in relation to the proposed Development as amended:

1. clause 5.21 Flood Planning

2. clause 6.1 Acid Sulphate Soils

3. clause 6.2 Earthworks

4. clause 6.3 Stormwater Management

State Environmental Planning Policies

State Environmental Planning Policy (Resilience and Hazards) 2021

42. Clause 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (HR SEPP) precludes the granting of development consent unless the consent authority has considered relevantly whether the Land is contaminated. The Site has been used for residential and retail purposes for a substantial number of years and is unlikely to be contaminated and cl 4.6(2) is not engaged. Council has imposed a condition of consent, condition 32, which requires that if any evidence of contamination is found during construction, then action must be taken.

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

43. An updated BASIX certificate dated 23 August 2023 has been issued to the Council in respect of the Amended Plans and the BASIX certificate complies with all the relevant requirements in the SEPP.

Sydney Regional Environmental Plan (Biodiversity and Conservation) 2021

44. The parties agree and the Court accepts that consideration has been given to the aims and objective of Ch 6 of the Sydney Regional Environmental Plan (Biodiversity and Conservation) 2021.

Community Consultation

45. The Council notified residents of the DA for a period of 21 days from 21 September 2022 to 12 October 2022. Four submissions were received which raised issues including heritage, privacy, streetscape and landscape.

46. The resident of 12 Johnston Street (No 12) spoke to her submission on site dealing with issues of privacy from the proposed new upper level master bedroom to an upstairs bedroom at No 12 which was inspected during the s34 conference on site. Given the distance to the proposed development it was not considered likely that privacy to No 12 would be impacted to the extent that a condition of consent be imposed to require a privacy screen on the southern end of the proposed new second floor roof terrace as requested by the resident.

47. The Court is satisfied that community consultation has been undertaken in accordance with the Council’s community engagement strategy and the resident objectors have been accorded procedural fairness consistent with the provisions of the EPA Act.

48. I am satisfied that the parties have considered matters of relevance to the proposed development the subject of the amended Development Application applicable under s 4.15(1) of the EPA Act and that no jurisdictional impediments arise to the Court’s power to grant consent under s 4.16(1)(a) of the EPA Act. I note the parties have advised that owners consent to the DA was provided.

Conclusion:

49. For the above reasons and based on the evidence before me and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

50. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notations:

51. The Court notes that:

1. Pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Respondent consent authority has approved the Applicant amending Development Application DA22/0733 (Development Application), in accordance with the following plans and documents:

Plan, Revision and Issue No.	Plan Name	Date Issued	Prepared by
DA2.11, Rev B	Demolition Basement Floor Plan	24.08.2023	Casey Brown Architecture
DA2.12, Rev B	Demolition Ground Floor Plan	24.08.2023	Casey Brown Architecture
DA2.13, Rev B	Demolition First Floor Plan	24.08.2023	Casey Brown Architecture
DA2.14, Rev B	Demolition Second Floor Plan	24.08.2023	Casey Brown Architecture
DA2.15, Rev B	Demolition Roof Plan	24.08.2023	Casey Brown Architecture
DA2.21, Rev B	Proposed Basement Floor Plan	24.08.2023	Casey Brown Architecture
DA2.22, Rev B	Proposed Ground Floor Plan	24.08.2023	Casey Brown Architecture
DA2.23, Rev B	Proposed First Floor Plan	24.08.2023	Casey Brown Architecture
DA2.24, Rev B	Proposed Second Floor Plan	24.08.2023	Casey Brown Architecture
DA2.25, Rev B	Proposed Roof Plan	24.08.2023	Casey Brown Architecture
DA2.26, Rev B	Proposed Landscape Plan	24.08.2023	Casey Brown Architecture
DA2.27, Rev B	Proposed Stormwater Concept Plan	24.08.2023	Casey Brown Architecture
DA2.31, Rev B	Proposed Longitudinal Section Looking East	24.08.2023	Casey Brown Architecture
DA2.32, Rev B	Proposed Longitudinal Section Looking East	24.08.2023	Casey Brown Architecture
DA2.33, Rev B	Proposed Longitudinal Section Looking East	24.08.2023	Casey Brown Architecture
DA2.34, Rev B	Proposed Latitudinal Section Looking North	24.08.2023	Casey Brown Architecture
DA2.35, Rev B	New Balcony Plan / Section Concept	24.08.2023	Casey Brown Architecture
DA2.41, Rev B	Proposed Northern Elevation	24.08.2023	Casey Brown Architecture
DA2.42, Rev B	Proposed Western Elevation	24.08.2023	Casey Brown Architecture
DA2.43, Rev B	Proposed Western Elevation without boundary wall	24.08.2023	Casey Brown Architecture
DA2.44, Rev B	Proposed Southern Elevation	24.08.2023	Casey Brown Architecture
DA2.51, Rev B	Material Palette : Proposed Northern Elevation	24.08.2023	Casey Brown Architecture
DA2.52, Rev B	Material Palette : Proposed Western Elevation	24.08.2023	Casey Brown Architecture
20119BdraftDP 1	Draft Plan of Subdivision	01.09.2023	C.M.S Surveyors Pty Ltd
Project No: 3234	Access Report	06.04.2022	Murrow Consulting
A471307_02	BASIX Certificate	23.08.2023	Casey Brown Architecture
34855ArptRev2	Geotechnical Investigation	1 September 2023	JK Geotechnics
No Reference	Structural Report on Excavation	9 August 2023	PMI Engineers
No Reference	Cantilevering First Floor Balcony Feasibility Report	02.03.2022	Cantilever Studio
No Reference	Existing Party Wall Support Certificate	02.03.2022	Cantilever Studio
No Reference	Proposed Basement Excavation Methodology	11.05.2022	Cantilever Studio

2. The Applicant filed the Amended Application with the Court on the same date as this agreement.

3. The Applicant’s written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP) to vary the development standard under cl 4.4 of the IWLEP for the proposed lot to be known as 54 Darling Street, Balmain East is upheld.

4. The Applicant’s written request under cl 4.6 of the IWLEP to vary the development standard under cl 4.4 of the IWLEP for the proposed lot to be known as 56 Darling Street, Balmain East is upheld.

Orders:

52. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away by the amendment of the application for consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,500 within 14 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to Development Application No DA22/0733, as amended, for alterations and additions to two adjoining terraces, including restoration of the original façade, new street verandah to the Darling and Johnston Street frontages, retention of existing corner ground floor retail space and basement, provision of a dwelling and residential unit, new landscaping and Torrens title subdivision of the property at 54 & 56 Darling Street, Balmain East, NSW subject to the conditions of consent at Annexure A.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A (247199, pdf)

**********

Decision last updated: 20 October 2023