Nguyen Services Pty Ltd v Inner West Council

[2022] NSWLEC 1442

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nguyen Services Pty Ltd v Inner West Council [2022] NSWLEC 1442

Hearing dates:

Conciliation Conference on 29 July 2022

Date of orders:

24 August 2022

Decision date:

24 August 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

1) The written request made pursuant to cl 4.6 of the Marrickville Local Environmental Plan 2011 to justify the contravention of the height development standard in cl 4.3, as prepared by Gerard Turrisi of GAT & Associates and dated 26 July 2022 is upheld.

2) The Appeal is upheld.

3) Development Application No. DA/2019/00421 (as amended) for the demolition of existing improvements and construction of a six storey mixed use building comprising retail and commercial tenancies with serviced apartments above and basement parking at 315-321 Illawarra Road, Marrickville NSW 2204 is determined by grant of consent subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – mixed use development – Floor Space Ratio development standard – Height of building development standard — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Interpretation Act 1987, ss 5 and 30A
Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cll 1.2, 2.3, 4.3, 4.4, 4.6, 6.20

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

State Environmental Planning Policy (Infrastructure) 2007, cl 101
State Environmental Planning Policy No 55 – Remediation of Land, cl 7
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.8, 2.119

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Nguyen Services Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P Larkin (Applicant)
D Robertson (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2021/235662

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an appeal against the refusal by Inner West Council (the respondent) of development application DA/2019/00421 (DA). The DA seeks development consent to demolish existing improvements and construct a 6 storey mixed use building comprising retail and commercial tenancies, with serviced apartments above and basement parking (the Proposed Development) at 315-321 Illawarra Road Marrickville NSW 2204, legally described as Lot 14-18 in Deposited Plan 6126 (the Site).

2. This matter commenced on 28 July 2022 as a two-day hearing with an onsite view and the Court heard from a number of objectors. Written objector submissions are included in the Respondent’s Bundle of Documents filed on 19 July 2022.

3. While on the Site, the Applicant advised the Court and the objectors of amendments to the Proposed Development resulting from the joint conferencing of the expert town planners. The changes were explained to the objectors and are in accordance with the notations at [37] below.

4. The concerns raised by objectors were predominantly about solar access and privacy. There were some concerns raised about the character of the local area and streetscape.

5. On 29 July 2022, at the second day of the hearing of this matter the parties sought to have the matter listed for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court arranged a conciliation conference between the parties which was held on 29 July 2022. I presided over the conciliation conference.

6. 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. This decision involved the Court upholding the appeal and granting development consent to the development application.

7. The parties agree that all contentions raised in the Amended Statement of Facts and Contentions (ASOFAC) filed by the Respondent on 11 May 2022 have been resolved by the amended Proposed Development and the agreed conditions of consent.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. Accordingly, the hearing date was vacated.

9. There are jurisdictional prerequisites that must be satisfied before the function of granting development consent can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Marrickville Local Environmental Plan 2011 (MLEP) to vary a development standard and various other provisions.

10. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note, which I now consider below.

11. The Proposed Development is a mixed use development comprising a development that is partly a commercial premises and partly tourist and visitor accommodation under the MLEP. Each of these uses, and hence the development as a whole, is permissible with development consent in the B2 Local Centre zone under the MLEP.

12. Pursuant to cl 4.4 of the MLEP, the prescribed floor space ratio (FSR) for the Site is 2.5:1 on the FSR Map. The Site, which includes an area of 1,073.3 square metres being zoned SP2, is the proposed dedication of 6 metres in the rear of the Site for a future laneway extension to Central Avenue. Pursuant to cl 4.4(2C) and conditions 57 and 68 of the parties’ agreed Conditions of Consent, which dedicates the SP2 zoned portion of the Site to the Council, this portion of the Site is to be included in the site area for the purpose of calculating FSR. The FSR of the Proposed Development is therefore 2.378:1, in compliance with the FSR development standard. The parties agree that the FSR will remain under 2.5:1 even after the addition of the retail space to the of the reception depicted in Drawing A-1343 Issue 1.

13. The Applicant agrees that the Proposed Development does not comply with the Height of Buildings (HOB) development standard within cl 4.3 of the MLEP but says that the proposed contravention is acceptable and has been sufficiently justified by the written request pursuant to cl 4.6 of the MLEP, prepared by Gerard Turisi of GAT & Associates and filed on 28 July 2022 (Written Request).

14. Pursuant to cl 4.3(2) and the Height of Buildings Map of the MLEP, the Site is prescribed a maximum building height of 20m. The Proposed Development proposes a maximum height of 21.27m. The Site is flood affected which contributes to the encroachment of the building height. Excluding the flood level the maximum height of the building is 20.65m, resulting in a variation of 3.25%.

15. The Applicant relies on the Written Request which provides an assessment against the objectives of the B2 Local Centre zone and the HOB development standard, and has provided environmental planning grounds to justify the contravention of the cl 4.3 development standard.

16. The parties agree that the Court can be satisfied that the Written Request suitably justifies the nature of the non-compliance and why it is unreasonable or unnecessary to comply with the development standard.

17. The parties agree that the development, as amended, is consistent with the aims of cl 1.2 of the MLEP.

18. The parties agree that the development, as amended, is consistent with the zone objectives pursuant to cl 2.3 and the land use table (objectives for the B2 Local Centre zone) of the MLEP.

19. I have read the Written Request and conclude that I am satisfied that the applicant’s written request, seeking to justify the contravention of the HOB development standard in the MLEP, has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out

20. One of the contentions in the ASOFAC relates to design excellence pursuant to cl 6.20 of the MLEP. In particular, cl 6.20(3) provides that development consent must not be granted to development to which this clause applies, unless the consent authority considers that the development exhibits design excellence. Clause 6.20(4) provides that regard must be had to the matters listed in that sub-clause as follows:

6.20   Design excellence

…

(4)   In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a)   whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)   whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)   whether the development detrimentally impacts on view corridors,

(d) whether the development detrimentally impacts on any land protected by solar access controls established in the Marrickville Development Control Plan,

(e) the requirements of the Marrickville Development Control Plan,

(f)   how the development addresses the following matters—

(i)   the suitability of the land for development,

(ii)   existing and proposed uses and use mix,

(iii)   heritage issues and streetscape constraints,

(iv)   the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)   bulk, massing and modulation of buildings,

(vi)   street frontage heights,

(vii)   environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii)   the achievement of the principles of ecologically sustainable development,

(ix)   pedestrian, cycle, vehicular and service access and circulation requirements,

(x)   the impact on, and any proposed improvements to, the public domain.

21. The amended design of the Proposed Development has considered the existing streetscape forms as exhibited in the streetscape analysis and aligns with the envelope controls contained within the Marrickville Development Control Plan 2011 (MDCP), reinforcing the desired future character of the area. Matters of overshadowing privacy, bulk, height and massing have been addressed through the design and via conditions of consent.

22. The Proposed Development also considers additional retail premises to the Illawarra Road frontage, once the driveway is no longer required, ensuring certainty in terms of a holistic design for the development and an appropriate streetscape. Accordingly, I am satisfied that that the Proposed Development exhibits design excellence.

23. Pursuant to Sch 5 and the Heritage Map of the MLEP, the Site is not an item of environmental heritage and is not located within a heritage conservation area. There are no heritage items in proximity to the Site.

24. In relation to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) (incorporating the provisions of the former and now repealed State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)):

1. SEPP T&I came into force on 1 March 2022 and the provisions of SEPP Infrastructure were transferred to Ch 3 of SEPP T&I.

2. However, the provisions of the SEPP Infrastructure continue to have effect in relation to the development by operation of ss 5(6) and 30A of the Interpretation Act 1987 (“Interpretation Act”), noting that the relevant transferred provisions were not amended in form or context.

25. The proposed Development Application was referred to Ausgrid under cl 2.48 of the SEPP T&I. Ausgrid requires that due consideration be given to the compatibility of the Proposed Development with existing Ausgrid infrastructure, particularly in relation to risks of electrocution, fire risks, Electro Magnetic Fields (EMFs), noise, visual amenity and other matters that may impact on Ausgrid or the development. A referral was received by Ausgrid on 4 February 2020 which was included in the Respondent’s Bundle of Documents filed with the Court. Ausgrid raises no concern with the Proposed Development, subject to the imposition of appropriate conditions.

26. The site has a frontage to Illawarra Road, which is a classified road. Under cl 2.119 of SEPP T&I, the consent authority must not grant consent to development on land that has a frontage to a classified road, unless it is satisfied that the efficiency and operation of the classified road will not be adversely affected by the development. The Site utilises an existing vehicular crossing for access to the basement and proposes the dedication of 6m at the rear of the site for a future laneway extension to Central Avenue. The Proposed Development was referred to Council’s Development Engineer who raised no concern with the egress to the Site, subject to appropriate conditions. The application is considered acceptable with regard to cl 101 of the SEPP Infrastructure 2007.

27. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the proposal satisfies the targets set by the Policy in relation to water, thermal and energy.

28. An updated BASIX Certificate has been filed with the Court. The certificate demonstrates compliance with the required water, thermal and energy provisions under BASIX.

29. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), (incorporating the provisions of the former and now repealed State Environmental Planning Policy No. 55 – Remediation of Land) (SEPP 55):

1. SEPP R&H came into force on 1 March 2022, and whilst the SEPP transfers the provisions of the former SEPP 55 to the new SEPP, the provisions of SEPP 55 continue to apply to the Proposed Development by operation of ss 5(6) and 30A of the Interpretation Act, and:

2. the relevant transferred provision (cl 7 of SEPP 55) was not amended in form or context;

30. Clause 7(1) of SEPP 55 and s 4.6(1) of the SEPP R&H provide that a consent authority must not consent to the carrying out of any development on land unless:

(a)   it has considered whether the land is contaminated, and

(b)   if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)   if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

31. Clause 7(2) of SEPP 55 and s 4.6(2) of the SEPP R&H provide that:

Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

32. The Development Application was accompanied by a Preliminary Site Investigation and Detailed Site Investigation Report prepared by Geo-environmental Engineering which concluded that the site is suitable for the proposed use. This report is filed with the Class 1 Application.

33. The parties agree, and I am satisfied, that the land is suitable in its current state for its intended use as a mixed-use commercial, and tourist and visitor accommodation as proposed by the Applicant in satisfaction of the provisions of s 4.6 of SEPP (R&H) (and those of cl 7(1) of the former SEPP 55).

34. In relation to the provisions of the MDCP, which applies to the Proposed Development on the Site, the parties agree that:

1. the applicable controls in MDCP have been considered in the assessment of the Proposed Development;

2. a summary of the development’s compliance with relevant controls is provided within the Applicant’s Statement of Environmental Effects and the Joint Report of the Planning Experts dated 25 July 2022; and

3. the development generally complies with applicable controls in MDCP, and to the extent that they may not, the Proposed Development represents a feasible alternative solution that achieves the objectives of those controls in satisfaction of the provisions of s 4.15(3A) of the EPA Act.

35. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties together with the reasons I have given above.

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.

Notations:

37. The Court notes that:

1. Inner West Council, as the relevant consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA/2019/00421 in accordance with the following amended plans and documents:

1. the written request made pursuant to cl 4.6 of the Marrickville Local Environmental Plan 2011 to justify the contravention of the height development standard in cl 4.3, as prepared by Gerard Turrisi of GAT & Associates and dated 26 July 2022;

2. Schedule of Amendments prepared by Benson McCormack Architecture dated 27 July 2022;

3. amended Architectural Drawings prepared by Benson McCormack Architecture:

Drawing No	Drawing Name	Issue	Date
A-0101	BASEMENT 2 PLAN	05	27 July 2022
A-0102	BASEMENT 1 PLAN	05	27 July 2022
A-0103	GROUND FLOOR PLAN	05	27 July 2022
A-0104	LEVEL 1 PLAN	05	27 July 2022
A-0105	LEVEL 2 PLAN	05	27 July 2022
A-0106	LEVEL 3 PLAN	05	27 July 2022
A-0107	LEVEL 4 PLAN	05	27 July 2022
A-0108	LEVEL 5 PLAN	05	27 July 2022
A-0109	ROOF PLAN	05	27 July 2022
A-0201	NORTH WEST ELEVATION	05	27 July 2022
A-0202	NORTH EAST ELEVATION	05	27 July 2022
A-0203	SOUTH EAST ELEVATION	05	27 July 2022
A-0204	SOUTH WEST ELEVATION	05	27 July 2022
A-0251	SECTION A	05	27 July 2022
A-0252	SECTION B	05	27 July 2022
A-0253	SECTION C	05	27 July 2022
A-0254	SECTION D	05	27 July 2022
A-0255	SECTION E	05	27 July 2022
A-1001	WINDOW SCHEDULE	02	27 July 2022
A-1002	DOOR SCHEDULE	02	27 July 2022
A-1301	MASSING STUDY	04	27 July 2022
A-1302	SHADOW ANALYSIS 21 JUNE-NO EXISTING TREES	03	27 July 2022
A-1303	SHADOW ANALYSIS 21 JUNE-NO EXISTING TREES	03	27 July 2022
A-1304	SHADOW ANALYSIS 21 JUNE-NO EXISTING TREES	03	27 July 2022
A-1306	SHADOW ANALYSIS ELEVATION 21 JUNE-NO EXISTING TREES	03	27 July 2022
A-1307	SHADOW ANALYSIS ELEVATION 21 JUNE-NO EXISTING TREES	03	27 July 2022
A-1308	SOLAR ACCESS AREA TO POS OF CENTRAL AVE HOUSES	04	27 July 2022
A-1314	3D VIEW SOLAR ACCESS JUNE 21	06	27 July 2022
A-1315	3D VIEW SOLAR ACCESS JUNE 21	05	27 July 2022
A-1316	3D VIEW SOLAR ACCESS JUNE 21	05	27 July 2022
A-1317	GFA CALCULATION	04	27 July 2022
A-1320	HEIGHT PLANE	05	27 July 2022
A-1324	SIDE ELEVATION FINISHES	02	27 July 2022
A-1343	DIAGRAMS;PROPOSED ADDITIONAL RETAIL	01	27 July 2022
1048137M_03	BASIX Certificate	M_03	28 July 2022

2. the amended development application documents were lodged on the NSW Planning Portal on 3 August 2022 (PAN: A-PAN-201900421); and

3. the amended development application was filed with the Court on 28 July 2022.

38. The Court further notes the agreement of the parties that all previous costs orders have been satisfied and no further costs are payable by the applicant to the Council.

39. The Court further notes that each party is to bear its own costs of the proceedings.

Orders:

40. The Court orders that:

1. The written request made pursuant to cl 4.6 of the Marrickville Local Environmental Plan 2011 to justify the contravention of the height development standard in cl 4.3, as prepared by Gerard Turrisi of GAT & Associates and dated 26 July 2022 is upheld.

2. The Appeal is upheld.

3. Development Application No. DA/2019/00421 (as amended) for the demolition of existing improvements and construction of a six storey mixed use building comprising retail and commercial tenancies with serviced apartments above and basement parking at 315-321 Illawarra Road, Marrickville NSW 2204 is determined by grant of consent subject to conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (401857, pdf)

**********

Decision last updated: 25 August 2022