JRNN Pty Ltd v Inner West Council

[2019] NSWLEC 1482

Land and Environment Court

New South Wales

Medium Neutral Citation:	JRNN Pty Ltd v Inner West Council [2019] NSWLEC 1482
Hearing dates:	Conciliation conference on 29 July 2019; 19 August 2019; 25 September 2019; 2 October 2019
Date of orders:	11 October 2019
Decision date:	11 October 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on the amended architectural plans and material as referred to in condition 4 of the conditions of consent contained at Annexure ‘A’, and the amended clause 4.6 written request at Annexure ‘B’. (2) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, as agreed or assessed. (3) The Applicant’s written request under clause 4.6 of the Ashfield Local Environmental Plan 2013, prepared by HDC Planning dated 8 August 2019 (contained at Annexure ‘B’) for contravention of the maximum height development standard imposed by clause 4.3 of the Ashfield Local Environmental Plan 2013 is upheld. (4) The appeal is upheld. (5) Development Application no DA2018/140.1 for demolition of existing structures, construction of a mixed use development comprising serviced apartments, ground floor retail, basement car parking and landscaping at 124-126 Parramatta Road, Ashfield is approved subject to conditions contained at Annexure ‘A’.
Catchwords:	DEVELOPMENT APPEAL– conciliation conference – agreement between the parties – orders
Legislation Cited:	Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No.55 – Remediation of Land
Texts Cited:	Comprehensive Inner West DCP 2016
Category:	Principal judgment
Parties:	JRNN Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: J Oldknow (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes and Verekers (Respondent)
File Number(s):	2018/367429
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Inner West Council (the Respondent) of Development Application No.DA2018/140.1 for the demolition of existing structures, construction of a mixed used development comprising serviced apartments, ground floor retail, basement car parking and landscaping at 124-126 Parramatta Road and 8 Tideswell Street, Ashfield.

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 29 July 2019. The conference commenced with an onsite view at which a number of objectors provided submissions. Following the onsite view, the parties including the Applicant, the Council and their experts, returned to Court to continue the conciliation conference. 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. The terms agreed at the conference required the preparation of amended plans, and a period of re-notification, for which an adjournment was granted. In broad terms, the amendments to the plans included the deletion of development fronting Tideswell Street, and revised vehicular driveway and consideration of future vehicular access to the adjoining property at 128 Parramatta Road.

4. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 1 October 2019.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of consent subject to agreed conditions annexed to the s 34 agreement.

6. 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.

7. The parties explained to me during the conference as to how conformance with the jurisdictional prerequisites has been achieved, including the requirements of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP), and State Environmental Planning Policy No.55 – Remediation of Land, and a written request to justify the contravention of the height of buildings development standard as set out in cl 4.3 of the Ashfield Local Environmental Plan 2013 (ALEP) pursuant to cl 4.6 of the ALEP as follows:

1. The site is located within both the B6 Enterprise Corridor and to the rear of the site fronting Tideswell Street the site is within the R3 Medium Density Residential zone as identified by the ALEP. The development the subject of the development application is confined to the area of the site within the B6 zone, which permits development for the purpose of hotel or motel accommodation with consent, and where the objectives of the zone are in the following terms:

• To promote businesses along main roads and to encourage a mix of compatible uses.

• To provide a range of employment uses (including business, office, retail and light industrial uses).

• To maintain the economic strength of centres by limiting retailing activity.

2. The amended proposal complies with the maximum permissible floor space ratio (FSR) permissible pursuant to cl 4.4 of the ALEP.

3. The site is subject to a maximum building height of 15m according to cl 4.3 of the ALEP. While the majority of the proposed development is within the maximum permissible height, a portion of the rooftop is 15.6m in height, being an exceedance of 0.6m or 4%. Clause 4.6 of the ALEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.3 of the ALEP, but that power is subject to conditions.

4. A written request to justify the contravention of the height of buildings development standard was prepared by Gilbert de Chalain of HDC Planning dated 8 August 2019 and I am satisfied that strict compliance with the height control is unnecessary or unreasonable in the circumstances of the case as the increased height makes a negligible contribution to the overall bulk of the building, occurs partly as a function of the site topography, and relates to a small and isolated part of the roof that will not be discernible from the public domain.

5. I am also satisfied that there are sufficient environmental planning grounds to justify the contravening of the development standard as the element that contravenes the height does not result in adverse shadow impact on adjoining properties, and cannot be seen from the public domain.

6. In my view, the written request demonstrates that the contravention of the standard results in an outcome that is consistent with the objectives of the development standard, and with the objectives of the B6 Enterprise Corridor zone applicable the site and reproduced at [7(1)].

7. I consider the Detailed Site Investigation Report and Remediation Action Plan prepared by EI Australia, to be sufficient to satisfy the Court that the site will be suitable for the development once remediation is carried out in accordance with cl 7 of the SEPP 55.

8. As the site is located on a classified road, the provisions of SEPP Infrastructure apply. However I am satisfied by reference to Schedule 3 that as the car park that is ancillary to the proposed development provides for fewer than 50 car parking spaces, cl 104 is not enlivened, and I concur with the Respondent that the requirements of cl 101 have been satisfied.

8. I also note that the Respondent notified residents of the amended proposal in accordance with Chapter B of Comprehensive Inner West DCP 2016 and considered all submissions received prior to entering in to this agreement.

9. 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.

10. 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.

11. The Court orders that:

1. The Applicant is granted leave to rely on the amended architectural plans and material as referred to in condition 4 of the conditions of consent contained at Annexure ‘A’, and the amended clause 4.6 written request at Annexure ‘B’.

2. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, as agreed or assessed.

3. The Applicant’s written request under clause 4.6 of the Ashfield Local Environmental Plan 2013, prepared by HDC Planning dated 8 August 2019 (contained at Annexure ‘B’) for contravention of the maximum height development standard imposed by clause 4.3 of the Ashfield Local Environmental Plan 2013 is upheld.

4. The appeal is upheld.

5. Development Application no DA2018/140.1 for demolition of existing structures, construction of a mixed use development comprising serviced apartments, ground floor retail, basement car parking and landscaping at 124-126 Parramatta Road, Ashfield is approved subject to conditions contained at Annexure ‘A’.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (292 KB)

Annexure B (1.16 MB)

Architectural Plans (3.19 MB)

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Decision last updated: 11 October 2019