KY Management Pty Ltd v Inner West Council

[2024] NSWLEC 1431

Land and Environment Court

New South Wales

Medium Neutral Citation:

KY Management Pty Ltd v Inner West Council [2024] NSWLEC 1431

Hearing dates:

Conciliation Conference 11 March 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The applicant’s written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (LEP) prepared by Planning Lab, seeking a variation of the development standard for building height set out in cl 4.3 of the LEP is upheld.

(2) The appeal is upheld.

(3) Development Application DA/2023/0440, as amended, for alterations and additions to an existing three-storey commercial building, to a six-storey mixed use building (shop top housing) containing retail space at the ground floor, residential accommodation at the upper levels, basement parking and landscaping of the courtyard and roof terrace at 310-312 Marrickville Road Marrickville NSW 2204, is determined by the grant of development consent, subject to the conditions set out in Annexure A.

(4) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,000 payable within 28 days.

Catchwords:

APPEAL – Development application –alterations and additions – conciliation conference – agreement between the parties - orders

Legislation Cited:

Airports Act 1996, Pt 12, Div 4

Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Housing) 2021, s 147, Sch 7A s 8, Sch 9 , Ch 4

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

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2

Inner West Local Environmental Plan 2022, cll 4.3, 4.4, 4.6, 6.1, 6.3 6.7, 6.8, 6.9, 6.13

Category:

Principal judgment

Parties:

KY Management Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

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

File Number(s):

2023/250186

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA/2023/0440) (Development Application) for alterations and additions to an existing three-storey commercial building, to a six-storey mixed use building (shop top housing) containing retail space at the ground floor, residential accommodation at the upper levels, basement parking and landscaping of the courtyard and roof terrace located on land identified as Lot 581 in Deposited Plan 733089, known as at 310-312 Marrickville Road, Marrickville (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 7 June 2023 (and accepted on 13 June 2023).

4. On 7 August 2023, the proceedings were commenced, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 March 2024 and adjourned on three occasions. I presided over the conciliation conference.

6. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Amended plans were filed with the Court on 9 May 2024 (Amended Development Application) cited at [49] which relevantly comprised:

1. updated architectural plans prepared by AE Design Studio dated 3 April 2024;

2. updated landscape plans prepared by Greenland Design Landscape Architects dated March 2024;

3. updated cl 4.6 variation request prepared by Planning Lab, dated 5 April 2024;

4. updated traffic report prepared by Varga Traffic Planning Pty Ltd dated 8 April 2024;

5. Operational Waste Management Plan prepared by Elephants Foot Consulting dated 3 April 2024;

6. summary environmental report prepared by Ausgrid dated 29 February 2024;

7. BASIX certificates (varying dates); and

8. meeting minutes and recommendations from the Architectural Excellence and Design Review Panel dated 22 August 2023.

7. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

8. 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.

Jurisdictional considerations

9. 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

10. Owners’ consent has been obtained from each of the owners of the Subject Land (see Class 1 Application, tab 4).

State Environmental Planning Policy (Resilience and Hazards) 2021

11. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because the Amended Development Application relates to alterations and additions to an existing commercial building and does not involve excavation (see p 18 of the Statement of Environmental Effects prepared by Planning Lab, dated 30 May 2023 (SEE) - Class 1 Application, tab 5).

State Environmental Planning Policy (Housing) 2021

12. The Development Application was made, but not determined, before 14 December 2023. Section 8(2A) of Sch 7A to State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Amended Development Application, notwithstanding s 8(1)(a) of Sch 7A of the Housing SEPP. This is because the Amended Development Application seeks consent for development for the purposes of residential flat buildings, being a matter referred to in Chapter 4 of the Housing SEPP.

13. Section 147(1) of the Housing SEPP relevantly provides that development consent must not be granted to residential apartment development unless the consent authority has considered:

1. the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

2. the NSW Planning & Environment Apartment Design Guide 2015 (Apartment Design Guide),

3. any advice received from a design review panel within 14 days after the consent authority referred the development application to the panel.

14. In accordance with s 147(1) of the Housing SEPP:

1. The applicant has prepared a Design Verification Statement (Class 1 Application, tab 7) and SEPP No. 65 ADG Compliance Table (Class 1 Application, tab 8). These documents assess and support the form of the proposed development against the design quality principles for residential apartment development and the Apartment Design Guide.

2. The Development Application was referred to the Architectural Excellence and Design Review Panel (Panel) on 22 August 2023. The parties agree that the Panel’s comments have been considered in the Amended Development Application (see minutes at Applicant’s s 34 Bundle, tab 37).

15. In determining the Amended Development Application, I confirm that I have considered the matters listed in s 147(1) of the Housing SEPP.

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

16. As the Development Application was submitted on the planning portal but not finally determined before 1 October 2023, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) continues to apply (see State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1 and 4.2).

17. The Amended Development Application is accompanied by relevant BASIX certificates (see Applicant’s s 34 Bundle, tabs 7 to 36) in accordance with the BASIX SEPP and s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

Inner West Local Environmental Plan 2022

18. The Subject Land is zoned E1 Local Centre under the Inner West Local Environmental Plan 2022 (LEP). Accordingly, shop top housing is permitted with consent in the E1 zone. I have had regard to the zone objectives which are extracted below:

•  To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To provide employment opportunities and services in locations accessible by active transport.

•  To provide retail facilities and business services for the local community commensurate with the centre’s role in the local centres hierarchy.

•  To ensure Inner West local centres are the primary location for commercial and retail activities.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To enhance the unique sense of place offered by Inner West local centres by ensuring buildings display architectural and urban design quality and contributes to the desired character and cultural heritage of the locality.

19. I note that the parties believe the Amended Development Application is consistent with these objectives.

20. Pursuant to cl 4.3 of the LEP, the maximum building height of 20m applies to the Subject Land (Height Standard). The Amended Development Application seeks a maximum building height of up to 20.6m for “Block A” and up to 22.1m for “Block B”.

21. The applicant has prepared a written request, pursuant to cl 4.6 of the LEP which seeks to justify the variation to the Height Standard (Height Request).

22. The Height Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6 of the LEP and concludes that:

1. Compliance with the Height Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the LEP), because the development achieves the objectives of the Height Standard notwithstanding the breach.

2. There are sufficient environmental planning grounds to justify contravening the Height Standard (pursuant to cl 4.6(3)(b) of the LEP), including that the breach is considered minor, will not result in any significant adverse impacts, contributes to optimising solar access within the development and is attributed to retaining the existing built form thereby reducing waste and the increased consumption of non-renewable resources. Further the proposed development will promote the economic and orderly use and development of land and better achieves the objects of the EPA Act, Housing SEPP and LEP (when compared with a height-compliant development).

3. The proposed development will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives of the E1 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the LEP).

23. The parties submit and I accept that the Height Request addresses the matters required to be demonstrated by cl 4.6(3) of the LEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives for development in the E1 zone. The respondent does not contend that the contravention of the Height Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard pursuant to cl 4.6(5) of the LEP.

24. I am satisfied under cl 4.6(4) that the Height Request has adequately addressed the matters required to be demonstrated by 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the Height Standard set out in cl 4.3(1)(a) and the objectives for development in the E1 zone, for the reasons given in the Height Request.

25. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the LEP. I find no grounds on which the Court should not uphold the Height Request.

26. Pursuant to cl 4.4(2) of the LEP, a maximum floor space ratio (FSR) development standard of 2.5:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

27. Pursuant to cl 6.1 of the LEP, the Subject Land is located on land identified as Class 5 acid sulfate soils. However, the parties agree that the proposed development does not include any excavation work which means there will not be any disturbance to the acid sulfate soils for the purposes of cl 6.1(6) of the LEP (see pp 24 of the SEE).

28. Pursuant to cl 6.3 of the LEP, development consent must not be granted to development unless the consent authority is satisfied of various matters. The parties agree that:

1. the proposed stormwater management will not change from what is currently existing on the Subject Land;

2. stormwater will continue to drain to Tuohy Lane at the rear of the site, a pump out system will be installed in the basement level and a stormwater treatment chamber will be installed on the ground level; and

3. the proposed development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

2. avoids a significant adverse impact of stormwater runoff on adjoining properties (see p 35 of the SEE).

29. In determining the Amended Development Application, I confirm that I am satisfied of the matters listed in cl 6.3 of the LEP.

30. Pursuant to cl 6.7 of the LEP, development consent must not be granted to development that is a controlled activity within the meaning of the Airports Act 1996 of the Commonwealth, Pt 12, Div 4, unless the applicant has obtained approval for the controlled activity under regulations made for the purposes of that Division.

31. The parties submit, and I accept, that the proposed development is consistent with the matters to be addressed in cl 6.7(2) of the LEP as:

1. the Development Application was referred to Sydney Airport Corporation (the relevant Commonwealth Body). A response, confirming that the authority had no objection to the proposed development was received on 15 June 2023; and

2. no objection was raised as the Sydney Airport Corporation has confirmed that the proposed development will not penetrate the Limitation of Operation Surface.

32. Pursuant to cl 6.8(3) of the LEP, in deciding whether to grant development consent to development to which the clause applies, the consent authority must consider and be satisfied of various matters. The parties agree that cl 6.8 of the LEP applies on the basis that the Subject Land is located within 3km north of the Kingsford Smith Airport and is in an ANEF contour of 20 or greater.

33. The parties agree that they have considered:

1. whether the development will result in an increase in the number of dwellings or people affected by aircraft noise; and

2. the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in Australian Standard AS 2021-2015 ‘Acoustics – Aircraft Noise Intrusion – Building Siting and Construction’.

34. The parties agree that they are satisfied that the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.

35. In determining the Amended Development Application, and having regard to the agreement of the parties, the Acoustic Report prepared by Renzo Tonin & Associates dated 20 March 2023 (see Class 1 Application, tab 10), and conditions 33 and 61 of the Agreed Conditions of Consent, I confirm that I have considered the matters listed in cl 6.8(3)(a) and (b), and am satisfied of the matter listed in cl 6.8(3)(c).

36. Pursuant to cl 6.9 of the LEP, development consent must not be granted for development unless the consent authority considered that the development exhibits design excellence and has considered the matters listed in cl 6.9(4). The parties agree that cl 6.9 of the LEP applies to the Amended Development Application as the proposed development involves external alterations to an existing building that will result in a building that is greater than 14m in height.

37. The parties agree that the matters listed in cl 6.9(4) have been considered and are satisfied that the proposed development exhibits design excellence.

38. In determining the Amended Development Application, and having regard to the agreement of the parties, the Design Verification Statement (Class 1 Application – tab 7) and SEPP No. 65 ADG Compliance Table (Class 1 Application – tab 8), I confirm that I have considered the matters listed in cl 6.9(4) and am satisfied that the development exhibits design excellence for the purposes of cl 6.9(3) of the LEP.

39. Pursuant to cl 6.13 of the LEP, development consent must not be granted to development for the purposes of residential accommodation unless the consent authority is satisfied of the matters listed in cl 6.13(3) of the LEP. The parties agree that cl 6.13 applies to the Amended Development Application as the Subject Land is for residential accommodation located within the E1 zone.

40. The parties submit and I accept that the proposed building:

1. is a mixed use development,

2. will have an active street frontage, and

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

Marrickville Development Control Plan 2011

41. For completeness, I note that the SEE considers the Marrickville Development Control Plan 2011 to the extent that it is of relevance to the proposed development (see pp 26 to 57).

Remaining matters under s 4.15(1) of the EPA Act

42. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment and will in fact have a positive social and economic impact on the locality (see also p 59 of the SEE).

43. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the development (see pp 59-60 of the SEE).

44. In respect of s 4.15(1)(d), the Development Application was notified between 20 June and 11 July 2023. 11 written submissions objecting to the proposed development were received in response to the notification of the proposal. Three of the objectors addressed the Court at the on-site view associated with the conciliation conference.

42. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

43. In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see also p 60 of the SEE).

Conclusion

47. 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.

48. 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.

49. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA/2023/0440 in accordance with the documents below:

Tab 1. Architectural plans
Drawing Number	Plan name	Date	Revision		Prepared By
0000	Cover Page	3/04/2024	F		AE Design Studio
0001	Calculations	3/04/2024	D		AE Design Studio
1000	Local Context Plan	3/04/2024	C		AE Design Studio
1010	Streetscape Elevations – Marrickville Road	3/04/2024	C		AE Design Studio
1020	Site Views	3/04/2024	C		AE Design Studio
1021	Site Context Plan	3/04/2024	C		AE Design Studio
1050	Demolition Plans	3/04/2024	B		AE Design Studio
1100	Basement & Lower Basement Plan	3/04/2024	G		AE Design Studio
1200	Ground Floor Plan	3/04/2024	G		AE Design Studio
1201	Level 1 Plan	3/04/2024	F		AE Design Studio
1202	Level 2 Plan	12/04/2024	H		AE Design Studio
1203	Level 3 Plan	12/04/2024	H		AE Design Studio
1204	Level 4 Plan	12/04/2024	H		AE Design Studio
1205	Level 5 Plan	3/04/2024	G		AE Design Studio
1206	Roof Plan	3/04/2024	G		AE Design Studio
1300	Sections	12/04/2024	H		AE Design Studio
1400	Elevations	12/04/2024	H		AE Design Studio
1401	Elevations	12/04/2024	H		AE Design Studio
1500.10	Solar Analysis 1	12/04/2024	D		AE Design Studio
1500.11	Solar Analysis 2	12/04/2024	D		AE Design Studio
1500.12	Solar Analysis 3	12/04/2024	D		AE Design Studio
1500.13	Solar Analysis 4	12/04/2024	D		AE Design Studio
1500.14	Solar Analysis 5	12/04/2024	D		AE Design Studio
1500.15	Solar Analysis 6	12/04/2024	D		AE Design Studio
1500.16	Solar Analysis 7	12/04/2024	D		AE Design Studio
1500.17	Solar Analysis 8	12/04/2024	D		AE Design Studio
1503	Solar Access Schedule	15/05/2023	B		AE Design Studio
1504	GFA Calculations and Cross Ventilation	3/04/2024	F		AE Design Studio
1510	Photomontage 1	3/04/2024	C		AE Design Studio
1511	Photomontage 2	3/04/2024	C		AE Design Studio
1512	Photomontage 3	3/04/2024	C		AE Design Studio
1513	Photomontage 4	12/04/2024	B		AE Design Studio
1520	Window Schedule and Cross Ventilation	3/04/2024	B		AE Design Studio
1521	Window Schedule and Cross Ventilation	3/04/2024	B		AE Design Studio
1522	Window Schedule and Cross Ventilation	3/04/2024	B		AE Design Studio
1523	Window Schedule and Cross Ventilation	3/04/2024	B		AE Design Studio
1524	Window Schedule and Cross Ventilation	3/04/2024	B		AE Design Studio
2000	Adaptable and Liveable Housing Design	3/04/2024	C		AE Design Studio
2001	Adaptable and Liveable Housing Design	3/04/2024	C		AE Design Studio
2002	Adaptable and Liveable Housing Design	3/04/2024	C		AE Design Studio
3100	Height Blanket	3/04/2024	D		AE Design Studio
3200	Envelope Analysis 1 of 3	3/04/2024	E		AE Design Studio
3201	Envelope Analysis 2 of 3	3/04/2024	E		AE Design Studio
3202	Envelope Analysis 3 of 3	3/04/2024	E		AE Design Studio
3210	Balustrade Details	3/04/2024	C		AE Design Studio
3211	Garbage Room Details	4/12/2023	A		AE Design Studio
3212	Bulk Room Details	4/12/2023	A		AE Design Studio
4000	Material Schedule	12/04/2024	D		AE Design Studio
4001	Material Schedule	12/04/2024	D		AE Design Studio
Tab 2. Landscape plans
Drawing Number	Plan name	Date	Issue		Prepared By
2660.GD.01	Landscape Plans	28/03/2024	B		Greenland Design Landscape Architects
2660.GD.02	Landscape Details & Specification	28/03/2024	B		Greenland Design Landscape Architects
Other documents
Description				Date
Tab 3. Clause 4.6 Variation Request Height of Buildings (Clause 4.3) Inner West LEP 2022 prepared by Planning Lab				5 April 2024
Tab 4. Traffic report prepared by Varga Traffic Planning Pty Ltd				8 April 2024
Tab 5. Operational Waste Management Plan prepared by Elephants Foot Consulting				3 April 2024
Tab 6. Summary Environmental Report prepared by Ausgrid				29 February 2024
Tab 7. BASIX Certificate No. A481611_04 (Unit 1)				17 May 2023
Tab 8. BASIX Certificate No. A481618_06 (Unit 2)				3 May 2024
Tab 9. BASIX Certificate No. A481620_04 (Unit 3)				23 March 2023
Tab 10. BASIX Certificate No. A481625_08 (Unit 4)				16 May 2023
Tab 11. BASIX Certificate No. A481627_03 (Unit 5)				22 March 2023
Tab 12. BASIX Certificate No. A481628_03 (Unit 6)				22 March 2023
Tab 13. BASIX Certificate No. A481629_04 (Unit 7)				23 March 2023
Tab 14. BASIX Certificate No. A481630_04 (Unit 8)				23 March 2023
Tab 15. BASIX Certificate No. A481632_04 (Unit 9)				17 May 2023
Tab 16. BASIX Certificate No. A481634_04 (Unit 10)				23 March 2023
Tab 17. BASIX Certificate No. A481635_04 (Unit 11)				23 March 2023
Tab 18. BASIX Certificate No. A481636_04 (Unit 12)				16 May 2023
Tab 19. BASIX Certificate No. A481637_04 (Unit 13)				6 May 2024
Tab 20. BASIX Certificate No. A481640_06 (Unit 14)				03 May 2024
Tab 21. BASIX Certificate No. A481645_04 (Unit 15)				23 March 2023
Tab 22. BASIX Certificate No. A481647_03 (Unit 16)				22 March 2023
Tab 23. BASIX Certificate No. A481651_04 (Unit 17)				23 March 2023
Tab 24. BASIX Certificate No. A481652_04 (Unit 18)				23 March 2023
Tab 25. BASIX Certificate No. A481653_03 (Unit 19)				23 March 2023
Tab 26. BASIX Certificate No. A481654_03 (Unit 20)				03 May 2024
Tab 27. BASIX Certificate No. A481655_04 (Unit 21)				23 March 2023
Tab 28. BASIX Certificate No. A481656_03 (Unit 22)				23 March 2023
Tab 29. BASIX Certificate No. A481657_04 (Unit 23)				23 March 2023
Tab 30. BASIX Certificate No. A481658_04 (Unit 24)				23 March 2023
Tab 31. BASIX Certificate No. A481659_05 (Unit 25)				06 May 2024
Tab 32. BASIX Certificate No. A481662_04 (Unit 26)				06 May 2024
Tab 33. BASIX Certificate No. A481664_04 (Unit 27)				23 March 2023
Tab 34. BASIX Certificate No. A481666_02 (Unit 28)				23 March 2023
Tab 35. BASIX Certificate No. A481670_06 (Unit 29)				6 May 2024
Tab 36. BASIX Certificate No. A481672_04 (Unit 30)				23 March 2023

2. The applicant filed the amended plans and documents outlined above with the Court on 9 May 2024.

Orders

50. The Court orders that:

1. The applicant’s written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (LEP) prepared by Planning Lab, seeking a variation of the development standard for building height set out in cl 4.3 of the LEP is upheld.

2. The appeal is upheld.

3. Development Application DA/2023/0440, as amended, for alterations and additions to an existing three-storey commercial building, to a six-storey mixed use building (shop top housing) containing retail space at the ground floor, residential accommodation at the upper levels, basement parking and landscaping of the courtyard and roof terrace at 310-312 Marrickville Road Marrickville NSW 2204, is determined by the grant of development consent, subject to the conditions set out in Annexure A.

4. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,000 payable within 28 days.

N Targett

Commissioner of the Court

Annexure A

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Decision last updated: 26 July 2024