Mitribe Developments Pty Ltd as trustee for Mitribe Tempe Trust v Inner West Council

[2024] NSWLEC 1633

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mitribe Developments Pty Ltd as trustee for Mitribe Tempe Trust v Inner West Council [2024] NSWLEC 1633

Hearing dates:

Conciliation conference held 7 June, 23 August, 23 September 2024

Date of orders:

10 October 2024

Decision date:

10 October 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/2023/0830 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $6,500 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA/2023/0830 (as amended) for demolition of existing structures and construction of three pairs of semi-detached dwellings (totalling six dwellings) and associated Torrens title subdivision at 9-15 Samuel Street Tempe, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached residential dwellings – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

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

Texts Cited:

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Mitribe Developments Pty Ltd as trustee for Mitribe Tempe Trust (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
N Touma (Solicitor) (Applicant)
R Dunstan (Solicitor) (Respondent)

Solicitors:
Lionheart Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/435977

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Mitribe Developments Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/2023/0830 (the DA) by Inner West Council (the Respondent). At the date of its lodgement on 13 October 2023, the DA sought consent for demolition of existing structures, subdivision of the site into eight Torrens title allotments and construction of a three-storey dwelling house on each lot with associated landscaping and car parking, at 9-15 Samuel Street, Tempe Bay (the site).

2. 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 7 June, 23 August and 23 September 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of tree loss, exceedance of the development standard for floor space ratio (FSR), a proposed subdivision resulting in an uncharacteristic cadastral pattern, inconsistency with the prevailing streetscape character, inappropriate building setbacks, inadequate parking provision, overshadowing impacts, and inadequate provision of private open space, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site, its context and the existing streetscape character of Samuel Street. Changes have been made to retain a greater number of existing street trees and to provide additional on-street car parking spaces in lieu of off-street spaces. The proposed building form and presentation to the street has been amended to adopt a more characteristic rhythm of three pairs of semi-detached dwellings, reducing the total number of dwellings proposed from eight to six. Building separation to existing neighbours has been revised to mitigate against privacy and cross viewing concerns.

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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 25 October 2023 to 15 November 2023. A total of nine submissions were received by the Respondent raising concerns for:

1. Tree removal and associated impacts of existing trees.

2. Excessive FSR and associated building bulk.

3. Overshadowing impacts on neighbouring dwellings.

4. Inappropriate streetscape character and uncharacteristic subdivision pattern.

5. Inadequate on-site parking and impacts for on-street parking.

6. Visual privacy and cross viewing impacts arising from inadequate side and rear setbacks.

10. A number of these concerns are reflected in the Respondent’s contentions and were discussed during the conciliation process.

11. The amended DA was re-notified between 29 August 2024 and 19 September 2024, and a further two submissions were received by the Respondent seeking the removal of existing trees on the site. The amended DA proposes the removal of one tree of concern to neighbours, the other being situated outside the subject site boundary.

12. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

13. The parties agree, and I am satisfied, that the Inner West Local Environmental Plan 2022 (IWLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The amended DA – characterised as three pairs of semi-detached dwellings – is permissible with consent within the R2 zone.

14. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the IWLEP, the amended DA is consistent with the relevant R2 Low Density Residential zone objectives, which include:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide residential development that maintains the character of built and natural features in the surrounding area.

15. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the IWLEP, consent is required to carry out demolition, and accordingly consent for demolition of existing structures is sought within the amended DA.

16. The parties agree, and I am satisfied, that all principal development standards of the IWLEP have been met by the amended DA, with the exception of cl 4.3 – Height of buildings – and cl 4.4 – FSR.

17. In such an instance, cl 4.6(3) of the IWLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standards.

18. Clause 4.6(4) of the IWLEP requires the consent authority to be satisfied that the Applicant’s written requests have adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

19. Additionally, cl 4.6(4)(b) of the IWLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

20. As required by cl 4.6 of the IWLEP, the Applicant has provided two written requests, seeking to vary the height of buildings and FSR development standards respectively, each prepared by ABC Planning Pty Ltd and dated August 2024.

21. Dealing firstly with height of building, pursuant to cl 4.3 of the IWLEP the site is subject to a height of building development standard of 9.5m. The amended DA proposes to exceed this development standard by 465mm and is limited to one of the six proposed dwellings.

22. The proposed building height will result in an exceedance of approximately 4.9% relating to the primary roof form of the northwestern-most dwelling as it abuts the existing neighbour at 17 Samuel Street.

23. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of building development standard for the following reasons:

1. The amended DA, in seeking to establish an improved streetscape presentation, adopts a building form and profile that generally follows that of the immediate neighbour at 17 Samuel Street.

2. The existing neighbour presents to Samuel Street as a typical two-storey terrace house reasonably typical of the local area.

3. The amended DA creates a relatively minor height exceedance in the vicinity of this existing neighbour as the proposed northwestern-most semi-detached dwelling effectively matches the neighbour’s profile.

4. The objectives of the IWLEP Zone R2 Low Density Residential land use zone include to provide for the housing needs of the community within a low density residential environment, and to provide residential development that maintains the character of built and natural features in the surrounding area. I am satisfied the amended DA meets these objectives.

5. The objectives of cl 4.3 of the IWLEP are to ensure the height of buildings are compatible with the character of the locality, to minimise adverse impacts on local amenity, and to provide an appropriate transition between buildings of different heights. I am satisfied the amended DA meets these objectives.

24. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of building development standard, and I find to uphold the written request.

25. Secondly, pursuant to cl 4.4 of the IWLEP the site is subject to a FSR development standard of 0.9:1. Five of the six proposed dwellings exceed this FSR development standard. Each differs slightly in the degree of exceedance, falling into a range of between 19.4sqm and 20sqm of Gross Floor Area, equating to a proposed FSR variance of between 9.8% and 10.2%.

26. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the FSR development standard for the following reasons:

1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the Samuel Street locality, including being compatible with the form and scale of adjacent dwellings.

2. The six dwellings (including the five which exceed the FSR standard) each present to the street as typical two-storey semi-detached terrace types familiar to the local area.

3. A portion off the FSR exceedance is situated within proposed roof forms, configured as attic space, which does not exacerbate impacts of additional bulk and scale.

4. The proposed FSR exceedance evident in the amended DA does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

5. As noted earlier in this judgment, I am satisfied the amended DA meets the objectives of the IWLEP Zone R2 Low Density Residential land use zone.

6. The objectives of cl 4.4 of the IWLEP include to establish a maximum FSR to enable appropriate development density, to ensure development density reflects its locality, to provide an appropriate transition between development of different densities, to minimise adverse impacts on local amenity, and to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain. I am satisfied the amended DA meets these objectives.

27. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

28. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the IWLEP – Acid sulphate soils – the site is mapped within an area classified as Class 5 Acid Sulfate Soils. However, works are not proposed within 500m of any adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land.

29. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the IWLEP – Earthworks – the extent of proposed excavation works are considered to be minor and limited to footings and foundations.

30. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the IWLEP – Stormwater management – the amended DA is accompanied by Stormwater Management Plans prepared by Nitma Consulting, which indicate the collection and disposal of stormwater in a controlled manner. Agreed conditions of consent are imposed to ensure compliance with the Stormwater Management Plan.

31. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The Applicant has provided a Preliminary Site Investigation (PSI) and Remediation Action Plan (RAP), both prepared by Development Risk Management Pty Ltd to evaluate the potential for contamination from past site activities (which was used for warehouse purposes) and to propose remediation processes to make the site suitable for the proposed development.

32. Agreed conditions of consent are imposed to ensure compliance with the recommendations of the PSI and RAP. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

33. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

34. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree, and I am satisfied, that no trees on public property or prescribed trees protected by Council’s Management Controls on the subject property are to be removed or damaged.

35. The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Consistent with SEPP BASIX and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate, No 1765770M dates 24 September 2024 has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

36. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

37. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 23 September 2024.

Orders

38. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/2023/0830 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $6,500 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA/2023/0830 (as amended) for demolition of existing structures and construction of three pairs of semi-detached dwellings (totalling six dwellings) and associated Torrens title subdivision at 9-15 Samuel Street Tempe, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architecture Plans

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Amendments

30 September 2025 - Removed underlining

Decision last updated: 30 September 2025