Inner City Property Holdings Pty Ltd v Inner West Council

[2020] NSWLEC 1220

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Inner City Property Holdings Pty Ltd v Inner West Council [2020] NSWLEC 1220
Hearing dates:	Conciliation conference on 8 May 2020
Date of orders:	18 May 2020
Decision date:	18 May 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) Leave is granted to the applicants 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 applicants are to pay the respondent’s costs thrown away as a result of the amendment of the application in the amount of $5,000 payable within 28 days of this agreement. (3) The applicants’ written request under clause 4.6 of the Leichhardt Local Environmental Plan 2013 seeking a variation of the development standard for floor space ratio under clause 4.4 of the Leichhardt Local Environmental Plan 2013 is upheld. (4) The appeal is upheld. (5) Development consent is granted to development application D/2018/482 for demolition of existing building, construction of a 3 storey mixed use retail & hotel development including basement carparking at 161 Parramatta Road, Annandale subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Inner City Property Holdings Pty Ltd (First Applicant) SCG Developments Nominees Pty Ltd (Second Applicant) Inner West Council (Respondent)
Representation:	N Sandstrom (Solicitor) (Applicants) S Turner (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicants) Inner West Council (Respondent)
File Number(s):	2019/69624
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicants have appealed against the Council’s deemed refusal of development application D/2018/482 for demolition of an existing building and the construction of a 3 storey mixed use retail & hotel development including basement car parking at 161 Parramatta Road, Annandale (the site).

2. The appeal is made to the Court pursuant to s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act). The essential facts are recorded in the Council’s Statement of Facts and Contentions dated 1 April 2019 (SOFC).

3. On 8 May 2020, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties and I presided over that conference. During that process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the Court exercising the function under s 4.16 of the EPA Act to uphold the appeal and grant development consent to the application subject to the agreed conditions in Annexure A.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision could have been made in the proper exercise of the Court’s functions. There are jurisdictional prerequisites that must be satisfied before development consent can be granted to the development. In this case, the parties have identified the relevant jurisdictional prerequisites in a short statement which I have considered and marked Exhibit A. The jurisdictional prerequisites of relevance include a written request made pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP 2013) to allow the contravention of the Floor Space Ratio (FSR) standard under cl 4.4A of the LLEP 2013 for the Gross Floor Area (GFA) calculation of the building. (Noting that while the provision of a maximum FSR of 1:1 is applicable to the site under cl 4.4 of the LLEP 2013, the site is subject to the provisions for exceptions to maximum FSR for active street frontages under cl 4.4A, which allows a maximum FSR of 1.5:1). (Emphasis added).

5. After a consideration of the written evidence before me, I am content 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 because the following jurisdictional prerequisites are satisfied.

1. The site is zoned B2 – Local Centre zone under the LLEP 2013. Mixed use buildings comprising a retail premise, hotel rooms and residential apartments are permitted with consent within the B2 Zone.

2. The contravention of the FSR development standard as set out in cl 4.4 of LLEP 2013, is justified because I accept that the applicants’ written request made pursuant to cl 4.6 (prepared by HDC Planning and dated May 2020) adequately addresses the matters required to be demonstrated by cl 4.6(4)(a). In that regard, I accept that notwithstanding the numerical contravention of the standard, the objectives of the development standard are still achieved. Therefore, compliance with the standard is unreasonable and unnecessary in this case (cl 4.6(3)(a)). I note that the development provided is for a mixed use development with an active street frontage as anticipated by the objectives of the clause. Furthermore, I accept that the extent of the non-compliance is not so significant as to have any demonstrable impacts on the desired future character of the area in relation to building bulk, form and scale. Additionally, I am of the view that there are sufficient environmental planning grounds to support the variation in accordance with cl 4.6(3)(b) as the careful location of the part of the additional floor space relative to the bulk form and scale ensures its consistency with the existing and future character of the area in accordance with the zone objectives (cl 4.6(4)(a)(ii)).

3. That said, I accept that the proposed GFA is in the public interest as it is consistent and compatible with the objectives of the FSR development standard and the B2 zone in which the development is proposed to be carried out: cl 4.6(4)(a)(ii).

4. In forming the view that the contravention is justified, I have considered the fact that the contravention does not raise any matter of significance for State or regional environmental planning and the public benefit of maintaining the development standard is not compromised in this case.

5. I am also satisfied that the objectives set out in cl 5.10 of the LLEP 2013 are achieved by the development because the proposal ensures the retention of the historically significant façade and provides a contemporary built from behind and integrated with the significant fabric. This results in a building which is compatible with the built environment and streetscape of the locality.

6. As the parties’ decision is a decision that the Court could have been 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. The Court orders:

1. Leave is granted to the applicants 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 applicants are to pay the respondent’s costs thrown away as a result of the amendment of the application in the amount of $5,000 payable within 28 days of this agreement.

3. The applicants’ written request under clause 4.6 of the Leichhardt Local Environmental Plan 2013 seeking a variation of the development standards for floor space ratio under clause 4.4 of the Leichhardt Local Environmental Plan 2013 is upheld.

4. The appeal is upheld.

5. Development consent is granted to development application D/2018/482 for demolition of existing building, construction of a 3 storey mixed use retail & hotel development including basement carparking at 161 Parramatta Road, Annandale subject to the conditions in Annexure A.

………………………

S Dixon

Senior Commissioner of the Court

69624.19 Dixon SC Annexure A (172 KB, pdf)

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Amendments

19 May 2020 - Administrative error.

Decision last updated: 19 May 2020