Hemmes Property Pty Ltd v Inner West Council

[2023] NSWLEC 1786

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hemmes Property Pty Ltd v Inner West Council [2023] NSWLEC 1786

Hearing dates:

Conciliation conference 29 August, 10, 20 November 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $28,000 within 28 days.

(3) Development application No DA/2022/0064 for the removal of 20 on-site car parking spaces and use of outdoor area as a beer garden with associated works, operating 10.00am - 12.30am Monday to Wednesday; 10.00am - 2.30am, Thursday to Saturday; and 11.00 am - 10.00pm, Sunday at 2 Addison Road, Marrickville 2204 (Lot 1 DP 774868) is approved, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – removal of onsite parking – outdoor beer garden use of existing outdoor area – requirement for additional acoustic treatment – conciliation conference – amended plans and material – agreement between the parties – orders made.

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Environmental Planning and Assessment Regulation 2021, Sch 6 s 3

Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cl 4.3

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

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Hemmes Property Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/68440

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) brought by the Applicant against the Respondent’s refusal of their development application (DA/2022/0064). As amended the development application seeks consent for removal of 20 on-site car parking spaces and use of outdoor area as a beer garden with associated works and new acoustic works at 2 Addison Road, Marrickville.

2. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 29 August 2023. The conciliation conference was adjourned to allow the applicant to prepare an amended set of documents to reflect the agreement reached between the parties at the conciliation conference. Those amended plans and materials, along with an agreement, were filed with the Court on 5 December 2023.

3. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was lodged with the Council before March 2022. As such the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continue to apply: s 3 of Sch 6 of the Environmental Planning and Assessment Regulation 2021. The development application was made with the consent of the owner of the land satisfying cl 49 of the EPA Regulation.

2. The development application was notified by the Council for a period of 14 days between 3 – 17 March 2022. Six submissions were received as well as a petition in support of the application. Further, a number of residents addressed the Court at the commencement of the conciliation conference. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects, prepared by Planning Lab dated 2 February 2022, confirms that the proposed development does not involve any disturbance of ground surface. Further, the development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

4. The Inner West Local Environmental Plan 2022 (LEP 2022) commenced on 12 August 2022. However, pursuant to cl 1.8A of LEP 2022, the development application is to be determined as though it had not commenced. As such the provisions of the Marrickville Local Environmental Plan 2011 (LEP 2011) apply.

5. Pursuant to LEP 2011 the site is zoned B4 Mixed Use. Commercial premises (of which pub is a type) are a use permitted with consent in the zone. The objectives of the zone follow. In determining the development application, I have had consideration to the objectives of the zone.

Zone B4   Mixed Use

1   Objectives of zone

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To support the renewal of specific areas by providing for a broad range of services and employment uses in development which display good design.

•  To promote commercial uses by limiting housing.

•  To constrain parking and restrict car use.

6. Pursuant to cl 4.3 of the LEP 2011, Height of Buildings, the maximum height standard applicable to the site is 14m. The development application proposes to increase the existing wall on Addison Road to 7.55m for acoustic purposes. The development is compliant with the height development standard.

7. The Marrickville Development Control Plan 2011 (DCP 2011) applies to the site. The Statement of Environmental Effects and the agreed jurisdictional note details the compliance of the proposed development with DCP 2011. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

7. The Court notes that:

1. Inner West Council as the relevant consent authority has, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, consented to the following amendments to development application No DA/2022/0064:

1. Architectural plans prepared by Akin Akelier:

Drawing No	Description	Date
DA-A-01 Revision C	Site Plan	17/11/23
DA-D-01 Revision D	Roof Plan	17/11/23
DA-D-02 Revision D	Ground Floor Plan - Courtyard	13/11/23
DA-D-03 Revision B	Ground Floor Plan – Public Bar	2/11/23
DA-E-01 Revision C	East Elevation – Addison Road	17/11/23
DA-X-01.1 Revision B	Bar	2/11/23
DA-X-01.2 Revision B	Bar - Equipment	2/11/23
DA-X-02 Revision B	Rear Deck Kitchen	2/11/23
DA-X-03 Revision B	Bin Enclosure	2/11/23
DA-X-04 Revision B	Perspective 01	15/11/23
DA-X-05 Revision B	Perspective 02	15/11/23
DA-X-06 Revision A	Aerial View + Material Finishes	17/11/23

2. Engineering plans prepared by CJP Consulting Engineers:

Drawing No	Description	Date
Drawing No. 23078-D01-V1, Sheet No. 0.1 of 0.3	SRV Entry and Exit Path	16/11/23
Drawing No. 23078-D01-V1, Sheet No. 0.2 of 0.3	B85 Entry and Exit Path	16/11/23
Drawing No. 23078-D01-V1, Sheet No. 0.3 of 0.3	B85 Entry and Exit Path	16/11/23

3. Plan of Management (Version 4.0) prepared by Merivale.

4. Acoustical Assessment prepared by the Acoustic Group dated 5 October 2023.

5. Acoustical Assessment – Reduced Barriers prepared by the Acoustic Group dated 17 November 2023.

8. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $28,000 within 28 days.

3. Development application No DA/2022/0064 for the removal of 20 on-site car parking spaces and use of outdoor area as a beer garden with associated works, operating 10.00am - 12.30am Monday to Wednesday; 10.00am - 2.30am, Thursday to Saturday; and 11.00 am - 10.00pm, Sunday at 2 Addison Road, Marrickville 2204 (Lot 1 DP 774868) is approved, subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 21 December 2023