Harmon International Holdings Pty Ltd v Inner West Council

[2021] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation:

Harmon International Holdings Pty Ltd v Inner West Council [2021] NSWLEC 1207

Hearing dates:

Conciliation conference on 9 March 2021

Date of orders:

7 March 2021

Decision date:

07 March 2021

Jurisdiction:

Class 1

Before:

Rappoport AC

Decision:

The Court orders that:

(1) Leave is granted for the applicants to rely on the amended plans and additional information as referred to in the conditions of consent at Annexure B and listed at Annexure A.

(2) The appeal is upheld.

(3) Development Application D/2019/219 for the partial demolition of the existing building with retention of the existing façade, awning and side walls and construction of a new 3 storey mixed use building comprising 1 studio unit, 7 hotel rooms, ground floor retail space and lower ground parking at 361 Parramatta Road, Leichhardt is approved subject to the conditions annexed at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between parties – orders – conditions – construction

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cll 4.4, 4.4A, 5.10, 6.1, 6.2, 6.3, 6.4, 6.11A, Schedule 5

State Environmental Planning Policy No 55—Remediation of Land, cl 7

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

State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Harmon International Holdings Pty Ltd (First Applicant)
Hi Nini Pty Limited (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T To (Applicants)
S Allam (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
Inner West Council (Respondent)

File Number(s):

2020/22333

Publication restriction:

No

Judgment

1. COMMISSIONER: Harmon International Holdings Pty Ltd and Hi Nini Pty Limited are the owners of the building at 361 Parramatta Road Leichhardt NSW to which consent was refused by Inner West Council (the Respondent) in response to Development Application D/2019/219 for the partial demolition of the existing building with retention of the existing façade, awning and side walls and construction of a new 3 storey mixed use building comprising of 1 studio unit, 7 hotel rooms, ground floor retail space and lower ground parking. The appeal is brought under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 9 March 2021. I presided over the conciliation conference.

3. There was no onsite view as the parties had already reached an agreement based on amended plans. The parties advised me they reached agreement under s 34(3) of the LEC Act, as to the terms of the decision in the proceedings that would be acceptable to the parties. This decision involved the preparation of an amendment known as Annexure B.

4. The agreement approves the development subject to amended plans that were prepared by the Applicants and noting that the final detail of the works are specified in the agreed conditions of development consent annexed to the s34 agreement. It was prepared in accordance with s 34(10) of the LEC Act, and was subsequently filed with the Court on 8 March 2021.

5. The parties asked 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 Applicants 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. 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.

7. These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7 of the EPA Act, against the deemed refusal of Development Application number D/2019/219 by the Respondent.

Amended proposal

8. In response to Council’s Statement of Facts and Contentions, Amended Statement of Facts and Contentions and the joint reports filed in the proceedings, the proposed development has been amended and now provides for the following:

1. Partial demolition of existing structures;

2. Retention of the existing façade, awning and side walls; and

3. Construction of a 3-storey mixed-use development comprising:

• Ground floor retail space;

• Ground, first and second floor hotel accommodation (7 rooms);

• 1 x residential apartment (studio) on second floor; and

• Lower ground floor/basement carparking for 1 vehicle and servicing (the amended proposal).

The subject site and zoning

9. The site the subject of the Development Application is legally described as Lot 1 in Deposited Plan 89488 and is also known as 361 Parramatta Road, Leichhardt (site).

10. The site is zoned B2 – Local Centre under the Leichhardt Local Environmental Plan 2013 (LLEP).

Jurisdictional matters

11. The Applicants are the owners of the site as tenants in common in equal shares.

12. Development for the purpose of commercial premises, residential flat buildings, shop top housing and tourist and visitor accommodation is permitted with consent in the B2 Local Centre zone under the LLEP.

13. Pursuant to cl 4.4 of the LLEP, the maximum floor space ratio (FSR) for the subject site is 1.0:1, however, the site is located in Area 1 and therefore cl 4.4A of the LLEP applies to the site. Clause 4.4A of the LLEP allows a maximum FSR of 1.5:1 if the consent authority is satisfied that, pursuant to cl 4.4A(3) of the LLEP:

(a) the building will have an active street frontage, and;

(b) the building comprises mixed use development, including residential accommodation, and;

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

14. With respect to cl 4.4A(3)(a) of the LLEP a retail space is proposed on the street frontage to Parramatta Road at the ground level. The parties are agreed that this establishes an active street frontage. It is noted that a portion of the street frontage is dedicated to a lobby entrance however cl 4.4A(4) of the LLEP provides that an active street frontage is not required for any part of a building that is used for entrances or lobbies.

15. The proposed development is a mixed-use development containing a retail space, hotel accommodation and a residential unit on the second floor. Accordingly, the parties are agreed that the proposed development satisfies cl  4.4A(3)(b) of the LLEP.

16. The parties agree that the development, in its revised form, is compatible with the desired future character of the area specifically in relation to its bulk, form, uses and scale and therefore satisfies cl 4.4A(3)(c) of the LLEP. This has been achieved by significantly reducing the height of the development, increasing setbacks at the rear, providing a retail component on the Parramatta Road frontage and amending the front façade in the manner agreed to by the heritage experts. Moreover, the parties agree that the amended proposal is consistent with the desired future character of the area as outlined in C2.2.3.5 of the Leichhardt Development Control Plan 2013 (LDCP).

17. The site is located within the Parramatta Road Heritage Conservation Area (HCA) under Schedule 5 of the LLEP. It is not a heritage item, nor does it adjoin any heritage items. The parties agree that the Heritage Impact Assessment prepared by Weir Phillips, dated November 2020, has considered the impact of the amended proposal on the HCA and the parties concur that the amended proposal will have an acceptable impact on the HCA. Further amendments to the scheme were proposed and agreed between the heritage experts during joint conferencing and these changes are reflected in the latest plans which the applicants seek leave to rely on. These further changes further mitigate the impact of the development on the HCA. Accordingly, the parties agree that the matters outlined in cl 5.10 of the LLEP are satisfied including the objectives.

18. With respect to acid sulfate soils, pursuant to cl 6.1 of the LLEP, the site is classified as Class 5 however the site is not located within 500m of adjacent Class 1, 2, 3, or 4 land (see cl 6.1(2) of the LLEP). Accordingly, the requirements under cl 6.1 are not enlivened by this application.

19. Pursuant to cl 6.2 of the LLEP, a Geotechnical Investigation prepared by JK Geotechnics dated 24 October 2018 confirms that excavated material will be appropriately disposed of, there will be no detrimental impacts on neighbouring properties with all works to be undertaken in a safe and compliant manner. It is not anticipated that any relics will be disturbed, and earthworks will have acceptable impact on drainage patterns. Appropriate measures are proposed to avoid, minimise or mitigate the impact of the development and accordingly the parties agree the proposal satisfies the matters outlined in cl 6.2(3) of the LLEP.

20. A Flood Risk Report prepared by Acor, dated 16 November 2020, confirms that the proposed development is compatible with the flood hazard of the land, will not significantly affect flood behaviour and incorporates appropriate measures to manage risk to life from flood. As such, the parties agree that the proposal achieves the requirements outlined under cl 6.3 of the LLEP.

21. Pursuant to cl 6.4 of the LLEP, the parties agree that the stormwater plans prepared by Acor (submitted with the class 1 application) in conjunction with the agreed conditions of consent ensure compliance with the requirements outlined in cl 6.4(3) of the LLEP.

22. For the reasons outlined at [13]-[16] above, the parties agree that the proposal, as amended, satisfies the matters listed in cl 6.11A of the LLEP.

23. With respect to cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) the Respondent has considered and is satisfied that the proposed development does not propose vehicular access off Parramatta Road but rather provides safe vehicular access from its rear lane (Dot Lane). The respondent is satisfied that the safety, efficiency and ongoing operation of Parramatta Road will not be impacted by this development. Further, in terms of the potential for noise intrusion to the development from Parramatta Road, the development application was accompanied by an acoustic report by Acoustic Logic dated 9 October 2018 that assessed this potential and recommended appropriate measures for the protection of the development from noise. The parties agree that the development is appropriately located and designed, with the recommended measures, to ameliorate potential traffic noise impacting on the development arising from Parramatta Road. The parties note that the acoustic report is expressly referenced in the conditions of consent at condition 5. Accordingly, the parties agree that cl 101 of the ISEPP is satisfied.

24. With respect to cl 102 of the ISEPP, the Acoustic Assessment Report prepared by Acoustic Logic, dated 9 October 2018, provides an assessment of the level of acoustic intrusion against the relevant noise criteria. The report concludes that if the recommendations contained within the report are adopted (such as window glazing) the impact on future residents will be acceptable. Accordingly, the parties agree that cl 102 of the ISEPP is satisfied.

25. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the site as it is within the Sydney Harbour Catchment. However, the site is not within the corresponding 'Critical Habitat Map', 'Foreshores and Waterways Area Map', 'Heritage Map', 'Sydney Opera House Buffer Zone Map', 'Strategic Foreshore Sites Map', 'Wetlands Protection Area Map'. The proposal is a substantial distance from the nearest water body and its foreshore, and it has been designed in accordance with typical stormwater capture, filtration and release measures to ensure its stormwater generation does not affect the health of the harbour or its foreshore. As such, the respondent has considered the proposal to be satisfactory with respect to the SREP.

26. The site has been assessed and the Remediation Action Plan (RAP) prepared by JK Geotechnics, dated 29 May 2019 concludes that, subject to the RAP being carried out accordingly, the site can be made suitable for the proposed use. Accordingly, the parties agree that the proposal satisfies the matters outlined in cl 7 of the State Environmental Planning Policy No 55—Remediation of Land. The parties note that the RAP is expressly referenced in the conditions of consent at condition 5.

27. Pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an amended BASIX Certificate has been issued with respect to the Development Application.

Merit issues

28. The conditions of consent agreed between the parties and annexed to the s34 agreement resolve the Respondent’s merit concerns.

29. Given that the merit issues have been resolved, this Court is not required to make any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notification

30. The Development Application has been notified in accordance with the LDCP and no submissions were received.

Power of the Court to enter into a section 34 agreement

31. Had the proposal been approved under the Development Application, it would not result in any contravention of the EPA Act, any environmental planning instrument or the Environmental Planning and Assessment Regulation 2000. As such, the Court may exercise its function under s 4.16(1) of the EPA Act and approve the Development Application.

32. The terms of the decision set out in the parties' s34 Agreement represent a decision the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

33. Accordingly, the Court orders:

1. Leave is granted for the applicants to rely on the amended plans and additional information as referred to in the conditions of consent at Annexure B and listed at Annexure A.

2. The appeal is upheld.

3. Development Application D/2019/219 for the partial demolition of the existing building with retention of the existing façade, awning and side walls and construction of a new 3 storey mixed use building comprising 1 studio unit, 7 hotel rooms, ground floor retail space and lower ground parking at 361 Parramatta Road, Leichhardt is approved subject to the conditions annexed at Annexure “B”.

……………………….

P Rappoport

Acting Commissioner of the Court

Annexure A (16347, pdf)

Annexure B (431115, pdf)

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Decision last updated: 07 May 2021