ONR Johnston Street Pty Ltd v Inner West Council

[2024] NSWLEC 1575

Land and Environment Court

New South Wales

Medium Neutral Citation:

ONR Johnston Street Pty Ltd V Inner West Council [2024] NSWLEC 1575

Hearing dates:

Conciliation conference on 2 August 2024

Date of orders:

19 September 2024

Decision date:

19 September 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $9,000 to be paid within 28 days of the date of these Orders.
(2) The Appeal is upheld.
(3) Development Application No. DA/2023/0909 for alterations and additions to an existing residential care facility to facilitate change of use to co-living housing (off campus student accommodation), provision of neighbourhood shop (café) and associated works, including signage and site remediation at 252 Johnston Street Annandale is determined by the grant of development consent, subject to the conditions set out in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – Co-living Housing – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021 s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Housing) 2021 ss 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120
Inner West Local Environmental Plan 2022 (IWLEP 2022), cll 4.3,4.4, 5.4, 5.10, 5.21, 6.3, 6.8

Texts Cited:

Inner West Council Community Engagement Framework

Category:

Principal judgment

Parties:

ONR Johnston Street Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/177878

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by ONR Johnston Street Pty Ltd (the Applicant) against the deemed refusal of Development Application DA/2023/0909 lodged with Inner West Council (the Respondent) on 8 November 2023.

2. The Development Application (DA) seeks development consent for alterations and additions to an existing residential care facility to facilitate a change of use to co-living housing (off campus student accommodation), provision of a neighbourhood shop (café) and associated works, including signage and site remediation. The proposed development is on land with a legal description of Lot 1 in DP 612905, also known as, 252 Johnston Street Annandale (the Site).

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference was held on 2 August 2024.

4. At the conciliation conference, the parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the DA subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court to the agreement of the parties. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Inner West Local Environmental Plan 2022 (IWLEP 2022), the subject site is in Zone R1 – General Residential. Development for the purposes of “co-living housing” is an innominate permissible use with development consent. Regard has been given to the zone objectives in determining the application.

2. Pursuant to cl 4.3 of IWLEP 2022, a building must not exceed the maximum height of buildings. There is no mapped maximum building height. As such, the development complies.

3. Clause 4.4(2B)(b) of the IWLEP 2022 provides a relevant maximum floor space ratio permissible for residential accommodation in the R1 zone is 0.6:1. Section 68 of the State Environmental Planning Policy (Housing 2021 (Housing SEPP) additionally provides a bonus of 10% FSR for co-living floor space. Applying the 10% bonus, the total permissible FSR for the site is 0.66:1 (or 1909.4m² GFA).

4. The proposed development has a GFA of 2915.45m² and an FSR of 1.007:1, which exceeds this control. As such, a clause cl 4.6 written request was lodged by the Applicant and prepared by KN Planning dated 7 March 2024. The parties agree that the clause 4.6 written request can be justified on the basis that:

1. The proposal is to re-purpose the existing building on the site which already exceeds the floor space control. The existing building has a GFA of 2538.33m² (or FSR of 0.877:1).

2. The proposed development will comply with other controls such as minimum landscaped area and site coverage controls. The parties consider that the proposed density is acceptable in terms of density and scale. There are no adverse amenity or overshadowing impacts on neighbouring properties caused by the exceedance.

3. The increase in gross floor area occurs wholly within the existing building envelope and footprint.

5. The clause 4.6 written request outlined that compliance with the development standard is unreasonable or unnecessary in the circumstances, and that there are sufficient environmental planning grounds to justify the contravention of the development standard. On review of the clause 4.6 written request, and the reasoning behind the variation, I am satisfied that the decision by the parties, to uphold the variation to the development standard, is a decision that the Court could have made.

6. Clause 5.4(7) of the IWLEP 2022 imposes an additional control with a maximum size of neighbourhood shops at a retail floor area of 100m². The proposed café has a compliant floor area of 30m².

Heritage

1. The development is located in the Annandale Heritage Conservation Area and adjoins a Landscape Heritage Item (street trees in Johnston Street). Pursuant to cl 5.10(4) of the IWLEP 2022, the consent authority must, before granting consent in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. The Applicant submitted a Heritage Impact Statement with its development application. On review, the parties are satisfied that the proposed development will not have an adverse impact on the heritage conservation area or adjacent street trees and I am satisfied that the required considerations have been undertaken.

Flood Planning and Stormwater

1. Clause 5.21(2) of the IWLEP provides that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied of various matters concerning the impact of the development on flood behaviour and the impacts of flooding on the development. Clause 5.21(3) further provides that in deciding whether to grant development consent, the consent authority must consider various matters relating to climate change, evacuation methods, etc. The development is on land identified as a Flood Control Lot, and as such the development application was accompanied by a flooding report. The parties are satisfied that the development deals with the matters in cl 5.21 of the IWLEP 2022. I am satisfied that the required matters have been considered.

2. Clause 6.3 of the IWLEP 2022 provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of various matters relating to the design of stormwater management for the site. The DA was accompanied by Stormwater Management drawings. The parties are satisfied that the development has appropriate plans for management of stormwater. I am satisfied that the required matters have been considered.

Aircraft Noise

1. Clause 6.8 of the IWLEP 2022 provides that a consent authority must consider various matters relating to impacts of aircraft noise and be satisfied that the development will meet certain criteria in the Australian Standards. As the development is located an area identified by this control, the development application was accompanied by an Acoustic Report. The parties are satisfied that the development complies with this control. I am satisfied that the required matters have been considered.

2. The development application was notified in accordance with the Inner West Council Community Engagement Framework from 22 November 2023 and 22 December 2023. Eight (8) submissions were received from nearby residents and have been considered under section 4.15(1)(d) of the EPA Act. Council is satisfied that the issues raised by residents are resolved through the Amended DA and proposed conditions of consent.

State Environmental Planning Policy (Transport and Infrastructure) 2021

8. The State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) provides, at s 2.119, that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied of various matters relating to the safety of the vehicular access and operation of the road. As Johnston Street is a classified road, a Traffic and Parking Assessment Report was submitted with the development application. There is no proposed changed to the existing driveway and the one-way access to Rose Street. I am satisfied that the parties have considered the relevant traffic impacts and that they have found those impacts to be acceptable.

9. Section 2.120 of the SEPP TI further provides that before determining a development application for development to which this section applies, the consent authority must take into consideration the guidelines published by the Planning Secretary relating to road noise or vibration. Noise impact considerations were detailed in the Acoustic Report submitted with the application. I am satisfied that the guidelines relating to noise and vibration impacts have been considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The parties have considered, and are satisfied, that the applicable requirements under SEPP BC have been met. The parties agree that the proposed tree removal has been assessed in the Aboricultural Impact Assessment (AIA) Report by Syncarpia Tree Consulting.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). A Remedial Action Plan which was lodged with the development application, which identifies the potential contamination risks, and provides a plan for further investigation and remediation of contaminants. The parties are satisfied that, following this additional investigation work and remedial work, the site will be suitable for the proposed use.

State Environmental Planning Policy (Housing) 2021

1. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) is an environmental instrument that applies to the Site. Section 69(1) of the SEPP Housing provides that development consent must not be granted for the purposes of co-living housing unless the consent authority is satisfied certain minimum design criteria. The parties have demonstrated adequate consideration of the required matters in the provided jurisdictional statement and I am satisfied with these considerations.

2. Further, development consent must not be granted unless the consent authority considers, relevantly, if:

1. the co-living housing has at least 3 storeys—the building will comply with the minimum building separation distances specified in the Apartment Design Guide;

2. at least 3 hours of direct solar access will be provided between 9am and 3pm at mid-winter in at least 1 communal living area; and;

3. the design of the building will be compatible with the desirable elements of the character of the local area.

3. The parties note this development is adaptive reuse of an existing building and are satisfied, based on the information in the Heritage Impact Statement, that the proposed development is compatible.

4. The parties have demonstrated to the Court, based on the information in the statement of environmental effects and the provided jurisdictional statement, that the relevant controls are satisfied.

10. 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’ agreement.

11. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

12. The Court notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA No. DA/2023/0909, in accordance with the listed in Annexure “A” to this judgment.

Orders

13. The Court Orders that:

1. The applicant is to pay the respondent’s costs that have been 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 agreed sum of $9,000 to be paid within 28 days of the date of these Orders.

2. The appeal is upheld.

3. Development Application No. DA/2023/0909 for alterations and additions to an existing residential care facility to facilitate change of use to co-living housing (off campus student accommodation), provision of neighbourhood shop (café) and associated works, including signage and site remediation at 252 Johnston Street Annandale is determined by the grant of development consent, subject to the conditions set out in Annexure B.

Stuart Harding

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 19 September 2024