Le Grandeur Pty Limited v Inner West Council

[2023] NSWLEC 1547

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Le Grandeur Pty Limited v Inner West Council [2023] NSWLEC 1547

Hearing dates:

Conciliation conference on 15 September 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $12,000 within 28 days.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No DA/2022/0228, for the demolition of the existing building and construction of a new four (4) storey shop top development with basement parking, on land legally described as Lot 31 in DP1162 and known as 310 Norton Street, Leichhardt NSW 2049, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: residential apartment development in E1 Local Centre zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 3, 29, 38

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cll 4.4, 4.4A, 6.1, 6.2, 6.4, 6.11A

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30

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

State Environmental Planning Policy Amendment (Land Use Zones) (No 6) 2022

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Le Grandeur Pty Limited (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T Hale SC (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
S & R Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/54799

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Inner West Local Planning Panel on behalf of Inner West Council (the Respondent) of development application DA/2022/0228 that seeks development consent for demolition of an existing building, and construction of a mixed use development containing commercial space at the ground floor level, residential flat building containing 6 residential units and basement car parking and landscaping works at 310 Norton Street, Leichhardt (.

2. On 15 September 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 15 September 2023, in accordance with s 34(10) of the LEC Act.

4. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. The development application, lodged on 30 March 2022, is supported by written consent of the owner. The Council advertised the development application between 14 April 2022 to 10 May 2022, in response to which eight submissions were received.

8. The site is located within an area identified by the Leichhardt Local Environmental Plan 2013 (LLEP), at the time the development application was lodged, as B2 Local Centre zone that was subsequently rezoned to be an E1 Local Centre zone, pursuant to the State Environmental Planning Policy Amendment (Land Use Zones) (No 6) 2022, in which the proposed uses are permitted with consent.

9. The objectives of the E1 zone are as follows:

•  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.

10. A height standard does not apply to the site, however a floor space ratio (FSR) of 1:1 applies to the site by virtue of cl 4.4 of the LLEP. That said, cl 4.4A(3) provides additional FSR in circumstances where the consent authority is satisfied that the building will have active frontages, comprises a mix of uses including residential uses, and where compatible with the desired future character of the area. The Respondent is so satisfied and the proposal complies with the additional FSR standard of 1.5:1.

11. The site is identified on the Acid Sulfate Soils Map at cl 6.1(2) of the LLEP as class 5 soils. However, the site does not appear to be within 500m of soil classified as another class of acid sulfate soil, and the topography does not lend itself to the water table being lowered as a result of the excavation proposed.

12. On the basis of the Geotechnical Investigation of the site prepared by Alliance Geotechnical and Environmental Solutions dated 9 December 2021, and the stormwater drainage plans prepared by Stronghold Engineers, I can be satisfied of those matters at 6.2(3) of the LLEP.

13. Relatedly, I can also be satisfied in respect of those stormwater provisions at cl 6.4 of the LLEP, on the basis of the stormwater drainage plans that document onsite detention of water will avoid any significant adverse impacts of stormwater runoff on adjoining properties. Furthermore, the Landscape Drawings prepared by Conzept Landscape Architects also satisfy the Court that the development has been designed to maximise the use of water permeable surfaces.

14. Clause 6.11A of the LLEP contains provisions in respect of residential accommodation in the E1 zone. I am satisfied the proposal is consistent with the provisions because it contains residential accommodation and a retail tenancy to activate the street frontage, and because the parties agree the proposal is compatible with the desired future character of the area that is not defined under the LLEP.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

15. Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires that the application must be accompanied by a statement by a qualified designer, defined at s 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of the EPA Regulation s 29, which include attestations similar to those required by cl 28(2)(b) and (c) of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65).

16. For whatever reason, the statement prepared by Mr Yiou Tan (Arch Reg No 9334) dated 10 December 2021 and 13 December 2023 failed to conform to the requirements that are clearly set out at s 29 of the EPA Regulation. However, a statement later provided, dated 15 September 2023 does conform, if read in conjunction with the ‘SEPP 65 Design Report’ also prepared by Mr Tan.

17. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 precludes development consent to any development unless it has been considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable, or will be suitable after undergoing remediation, for the proposed use.

19. A preliminary site investigation, Detailed Site Investigation and Remedial action Plan (RAP) have been prepared by Alliance Geotechnical & Environmental Solutions. On the basis of the conclusions of the Detailed Site Investigation, dated 22 February 2022, and the proposed remediation set out in the RAP dated 3 March 2022, I accept the site is contaminated but can be made suitable for the proposed development, subject to the terms of Condition 16 in the agreed conditions of consent.

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

20. I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1266576M_02 dated 9 August 2023), prepared by ESD Synergy in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

21. 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.

22. 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.

23. The Court notes that:

1. the Respondent, as the relevant consent authority, has consented, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant further amending Development Application No DA/2022/0228 in accordance with the following amended documents lodged on the NSW Planning Portal on 11 September 2023 and filed with the Court on 11 September 2023 and 18 September 2023:

Plan, Revision and Issue No	Plan Name	Date Issued	Prepared by
DA03, Rev A	Demolition plan	16/12/2021	Metropoint Group Architects
DA10, Rev E	Basement floor plan	23/08/2023	Metropoint Group Architects
DA11, Rev E	Ground floor plan	23/08/2023	Metropoint Group Architects
DA12, Rev E	Level 1 Floor Plan	23/08/2023	Metropoint Group Architects
DA13, Rev E	Level 2 Floor Plan	23/08/2023	Metropoint Group Architects
DA14, Rev E	Level 3 Floor Plan	23/08/2023	Metropoint Group Architects
DA15, Rev E	Roof Plan	23/08/2023	Metropoint Group Architects
DA20, Rev E	East and West Elevations	23/08/2023	Metropoint Group Architects
DA21, Rev E	North Elevation	23/08/2023	Metropoint Group Architects
DA22, Rev E	South Elevation	23/08/2023	Metropoint Group Architects
DA30, Rev E	Sections A	23/08/2023	Metropoint Group Architects
DA31, Rev E	Section B	23/08/2023	Metropoint Group Architects
DA32, Rev E	Section C and D	23/08/2023	Metropoint Group Architects
DA40, Rev B	Demolition Construction Waste Management Plan	2/09/2022	Metropoint Group Architects
DA41, Rev B	On-Going Waste Management Plan	2/09/2022	Metropoint Group Architects
DA80, Rev D	Materials and Finishes Schedule	09/08/2023	Metropoint Group Architects
ST01 Rev C,  ST02 Rev C,  ST03 Rev C, & ST04 Rev C	Stormwater Drawings	08/08/2023	Stronghold Engineers
LPS34 22 – 196/1 F LPS34 22 – 196/2 F LPS34 22 – 196/3 F LPS34 22 – 196/4 F LPS34 22 – 196/5 F LPS34 22 – 196/6 F	Landscape Drawings	09/08/2023	Conzept Landscape Architects
Rev A	Arboricultural Impact Assessment Report	09/09/2022	Hugh The Arborist
Certificate No. 1266576M_02	BASIX Certificate	09/08/2023	ESD Synergy
DDA 1517	Access Report	17/12/2021	Certis
13976-GR-1-1 Rev A	Geotechnical Report	10/12/2021	Alliance Geotechnical & Environmental Solutions
Letter	Design Verification Statement	15/09/2023	MGA
20211493.1/2211A/R0/HD	Acoustic Assessment Report	22/11/2021	Acoustic Logic

2. That the following documents were filed with the Court on 18 September 2023:

13976.2-ER-1-3	Remedial Action Plan	03/03/2022	Alliance Geotechnical & Environmental Solutions
13976.2-ER-1-2	Detailed Site Investigation Report	22/02/2022	Alliance Geotechnical & Environmental Solutions
13976.2-ER-1-1	Preliminary Site Investigation Report	10/12/2021	Alliance Geotechnical & Environmental Solutions

Orders

24. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $12,000 within 28 days.

2. The appeal is upheld.

3. Development consent is granted to Development Application No DA/2022/0228, for the demolition of the existing building and construction of a new four (4) storey shop top development with basement parking, on land legally described as Lot 31 in DP1162 and known as 310 Norton Street, Leichhardt NSW 2049, subject to the conditions at Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A

Amendments

29 November 2023 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), Annexure A is substituted with corrected version of conditions of consent, deleting Condition 9 inserted in error.

Decision last updated: 29 November 2023