Moini Pty Limited v The Council of the City of Sydney

[2024] NSWLEC 1486

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moini Pty Limited v The Council of the City of Sydney [2024] NSWLEC 1486

Hearing dates:

Conciliation conference on 1 August 2024

Date of orders:

13 August 2024

Decision date:

13 August 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $9,000.00 to be paid within twenty eight (28) days from the date of these orders.

(2) The Applicant’s written request, prepared by Minto Planning Services dated 29 April 2024, made pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 to vary the communal open space control contained within cl 68(d) of the State Environmental Planning Policy (Housing) 2021, is upheld.

(3) The appeal is upheld.

(4) Development Application No. D/2023/393, as amended, for the demolition of the 2 existing residential dwellings, removal of trees, excavation and construction of a 3 storey co-living housing development within the boundaries of 20 and 22 Forest Street, Forest Lodge, and consolidation with the existing boarding house at 13 and 15 Ross Street, Forest Lodge into a single development site to operate as co-living housing, is determined by the grant of consent subject to the conditions at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION: co-living housing development in R1 General Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.21, 7.14, 7.19

State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Moini Pty Limited (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A (Solicitor) (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2023/220601

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 deemed refusal by the Council of the City of Sydney (the Respondent) of development application No.D/2023/393 seeking consent for the demolition of two existing dwellings, removal of trees, excavation and construction of a 3-storey co-living housing development with the boundaries of 20 and 22 Forest Street, Forest Lodge, and consolidation with the existing boarding house at 13 and 15 Ross Street, Forest Lodge, into a single development site to operate as co-living housing.

2. On 31 July 2024, 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. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was submitted to the Court on 30 July 2024, in accordance with s 34(10) of the LEC Act.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. 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.

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

7. 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.

8. The development application was lodged on 11 May 2023, at which time the Applicant was the registered proprietor of 13-15 Ross Street. The Applicant is now also the registered proprietor of 20-22 Forest Street.

9. The site is located in two zones according to the Sydney Local Environmental Plan 2012 (SLEP). The site at 13-15 Ross Street is located within the E1 – Local Centre zone, and the site known as 20-22 Forest Street is located in the R1 – General Residential zone.

10. Development for the purposes of shop top housing is permitted with consent in the E1 – Local Centre zone, and development for the purposes of a residential flat building and shop top housing is permitted with consent in the R1 General Residential zone.

11. As such, the proposal also satisfies the requirements of s 67 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and is therefore a permitted use.

12. The parties have prepared a schedule demonstrating compliance with those development standards which, if complied with, preclude more onerous standards from being applied, pursuant to s 68 of the Housing SEPP, and with those standards at s 69 that identify the standards which must be complied with. I am satisfied those standards at s 69 of the Housing SEPP are achieved.

13. That said, the schedule identifies an area of communal open space of 142.43m2, which is less than that required by s 68(2)(d)(i) and (ii) of the Housing SEPP.

14. The provisions of s 68 are, relevantly:

(1)  The object of this section is to identify development standards for particular matters relating to development for the purposes of co-living housing that, if complied with, prevent the consent authority from requiring more onerous standards for the matters.

(2) The following are non-discretionary development standards in relation to development for the purposes of co-living housing—

…

(d)  communal open spaces—

(i)  with a total area of at least 20% of the site area, and

(ii)  each with minimum dimensions of 3m,

…

15. As the site area is 879.1m2, an area of communal open space equal to 175.8m2 is required.

16. While non-compliance with a non-discretionary development standard in the form at s 68 does not prevent the grant of consent, the Applicant relies on a written request authored by Minto Planning Services dated 23 May 2024 in accordance with cl 4.6 of the SLEP.

17. I accept and am satisfied that, absent an objective at s 68 of the Housing SEPP, that the underlying objective of the standard may be reasonably considered to be to ensure residents of the development are provided within a level of amenity, with access to sunlight, privacy and landscape amenity, and that this underlying objective is achieved, notwithstanding non-compliance with the standard.

18. I am also satisfied the development is consistent with the objectives for development in the R1 zone in which the site at 20-22 Forest Street is located, for the reasons set out in the written request.

19. The written request advances three environmental planning grounds said to be sufficient to justify the contravention of the standard, summarised as follows:

1. The proposed development includes the consolidation of two sites, including the site fronting Ross Street on which boarding house development was approved under State Environmental Planning Policy (Affordable Rental Housing) 2009, with an area of communal open space that complied with the requirement applicable at the time. The site at 20-22 Forest Street has a total area of 433.8m2, and so requires communal open space of 86.76m2 to be provided on that site. The proposal is for 87.24m2 on the site at 20-22 Forest Street, which complies. Accordingly, each site has either complied with the standard relevant at the time, or that now applies. The non-compliance arises by virtue of the change of use for development on 13-15 Ross Street from a boarding house to co-living, and the application of the standard across both sites.

2. Notwithstanding the non-compliance with the standard, the areas of communal open space will have high levels of amenity such as sunlight, appropriate privacy and landscape.

3. The proposed development will promote housing diversity and affordability, resulting in certain positive social and economic impacts for the area.

20. While the third environmental planning ground seeks to promote the development as a whole, and not address the particular non-compliance, I accept the first ground, that the non-compliance arises as a result of the consolidation of the site and that individually the sites have, or do, comply with the standard applicable at the time the consent was, or is, sought.

21. Accordingly, I am satisfied that the written request adequately addresses those matters to be demonstrated at cl 4.6(3) of the SLEP.

22. Furthermore, as I am satisfied the underlying objective of the standard, and the objectives for development in the zone, are achieved, I am also satisfied that the development is in the public interest, pursuant to cl 4.6(4)(a)(ii) of the SLEP.

23. 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 SLEP and I find no grounds on which the Court should not uphold the height request.

24. The parties advise, and I accept, that the proposal complies with the height of building standard at cl 4.3 of the SLEP, and with the floor space ratio standard at cl 4.4 of the SLEP when the applicable standard is so understood:

1. a maximum FSR of 1.5:1 applies to the site at 13-15 Ross Street. The approved boarding house development on 13-15 Ross Street benefited from a 0.5:1 FSR bonus under State Environmental Planning Policy (Affordable Rental Housing) 2009, resulting in a total maximum FSR of 2:1, and maximum GFA of 890.6m². Consent for the boarding house development approved a maximum FSR of 1.75:1. There are no works proposed to the approved boarding house; and

2. a maximum FSR of 1:1 applies to the site at 20-22 Forest Street. Pursuant to s 68(1)(a)(ii) of the Housing SEPP, an additional 10% FSR is permitted if the additional floor space is used only for the purposes of co-living housing. Accordingly, the maximum FSR is 1.1:1, and the proposed FSR is 1.094:1.

25. While the Site is not listed as a heritage item, it is nevertheless located within the Hereford and Forest Lodge Heritage Conservation Area (the Conservation Area). The dwellings on 20-22 Forest Street are identified as contributory items under the Sydney Development Control Plan 2012 (SDCP). The development application is accompanied by a Heritage Impact Statement (HIS) prepared by Weir Phillips which confirms that the proposed development is acceptable and that it will not have an unacceptable impact on heritage items in the vicinity or heritage conservation area. Having considered the effect of the proposed development on the heritage conservation area, I conclude, on the basis of the HIS, that no detriment accrues to either the Heritage Conservation Area or heritage items in the vicinity of the site within terms at cl 5.10 of the SLEP.

26. Pursuant to cl 6.21C(2)(a) of the SLEP, development consent is precluded unless the consent authority has considered and is satisfied that the development exhibits design excellence. The parties’ town planning and urban design experts have reviewed the proposal and agree that the Development Application, as amended, exhibits design excellence for reasons set out below:

1. The proposed development has been re-designed over the course of appeal proceedings to provide colours, materials, detailing and a design for the new co-living housing infill building fronting Forest Street to present a suitable elevation and public domain interface.

2. The design of the building that is proposed to replace the cottages at 20 and 22 Forest Street will present as two, low-scale buildings that respond sympathetically to the character of neighbouring properties.

3. The portion of the proposed building within that part of the site at 20 Forest Street interprets a traditional terrace typology, comprising brick render, two contemporary dormer windows, timber framing and metal finishes and which provides a sympathetic response to the single-storey terrace at 18 Forest Street.

4. The portion of the proposed building within that part of the site at 22 Forest Street incorporates more contemporary features such as aluminium framing and balustrades, of masonry construction with colours and finishes that are neutral in composition to provide a suitable transition to the character of the modern infill building at 24 Forest Street.

5. The proposed co-living housing infill building fronting Forest Street is set back to respond to the setbacks of the adjacent buildings. It will provide direct entries from those co-living rooms adjacent to the street, through small front yards containing landscaping, plantings and front verandas. The windows and doors facing Forest Street are suitably proportioned to respond to the character of the conservation area. Simply detailed palisade fences will be erected on the property boundary to Forest Street.

6. These design qualities will improve the quality and amenity of the public domain.

7. The proposed development design responds sympathetically to the streetscape and will not have unacceptable adverse impacts upon the significance of the heritage conservation area, or on the amenity of surrounding residential properties. As such the subject site is suitable for the proposed development.

8. The previously approved boarding house use fronting Ross Street is to be retained and the proposed new co-living housing use fronting Forest Street and which is to augment the existing boarding house is permitted in the Zone R1 General Residential.

9. The bulk, massing and modulation of the proposed co-living housing infill building fronting Forest Street responds sympathetically to the streetscape and will not have unacceptable adverse impacts upon the significance of the heritage conservation area.

10. The proposal complies with the solar access requirements for the development specified in the Housing SEPP. The proposal satisfactorily addresses the applicable overshadowing, privacy, noise, wind and reflectivity requirements specified in the SDCP.

27. The Site is identified as being affected by acid sulfate soils Class 5 on the Acid Sulfate Soils Map at cl 7.14(2) of the SLEP, however, the it is not located within 500m of Class 1, 2, 3 or 4 land, therefore I accept that an acid sulfate management plan is not required.

28. The parties advise me that, in their opinion, as the development application seeks consent for demolition and the construction of development, that is sufficient to be satisfied that measures will be taken to mitigate any adverse visual impacts that may arise as a result of the demolition with regard to the streetscape and any special character area, in accordance with cl 7.19 of the SLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. As the site is located within the ‘Sydney Harbour Catchment’, consent must not be granted to development on land in such a regulated catchment unless the Court is satisfied that the development ensures that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody will be minimised. On the basis of the statement from S&G Consulting Engineers dated 6 June 2024, and a supplementary letter dated 1 August 2024, confirming the proposed development will have a neutral effect on the quality of water run off, and will minimise the impact on water flow, I am satisfied of those matters at s 6.6(2) of the Biodiversity SEPP. In particular, I accept that the increase in impervious area on the site is at the rooftop only, and that the post development flow is less than the pre-development flow.

30. As the proposed development is not in the vicinity of any natural waterbody or wetlands, I am satisfied of those matters at s 6.7 of the Biodiversity SEPP. Likewise, as the site is not flood liable, I am also satisfied in respect of s 6.8.

31. In accordance with s 6.9 of the Biodiversity SEPP, I am satisfied the Site is not located in the vicinity of any natural waterbodies and so will not impact public access to or from those waterbodies.

32. Finally, pursuant to s 6.10 of the Biodiversity SEPP, given I am satisfied the proposal will have a neutral or beneficial effect on the quality of water run off, the development will not have an adverse environmental impact and so consultation of a kind envisaged by s 6.10 of the Biodiversity SEPP is not required.

State Environmental Planning Policy (Resilience and Hazards) 2021

33. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) precludes the grant of consent unless it has considered whether a site is contaminated or whether that the land is suitable for the proposed use.

34. The Development Application is accompanied by the Statement of Heritage Impact prepared by Weir Philips dated March 2023 that provides a detailed historical chronology confirming the use of the Site has been for residential purposes since 1883.

35. As such, I accept the Site is not contaminated, and so is suitable for its proposed use in its current state for the purpose of s 4.6 of the SEPP Resilience and Hazards.

Conclusion

36. 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.

37. 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.

38. The Court notes that:

1. Pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the applicant applied to the respondent consent authority for an amendment to Development Application No D/2023/393, in accordance with the documents set out in Annexure ‘B’.

2. Pursuant to s 38(1) of the EP&A Regulation the respondent consent authority has approved the application to amend the Development Application.

3. The respondent’s reasons for agreement to the terms of the decision, are set out in Annexure C.

Orders

39. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $9,000.00 to be paid within twenty eight (28) days from the date of these orders.

2. The Applicant’s written request, prepared by Minto Planning Services dated 29 April 2024, made pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 to vary the communal open space control contained within cl 68(d) of the State Environmental Planning Policy (Housing) 2021, is upheld.

3. The appeal is upheld.

4. Development Application No. D/2023/393, as amended, for the demolition of the 2 existing residential dwellings, removal of trees, excavation and construction of a 3 storey co-living housing development within the boundaries of 20 and 22 Forest Street, Forest Lodge, and consolidation with the existing boarding house at 13 and 15 Ross Street, Forest Lodge into a single development site to operate as co-living housing, is determined by the grant of consent subject to the conditions at Annexure ‘A’.

T Horton

Commissioner of the Court

220601.23 Annexure A

**********

Decision last updated: 14 August 2024