PAD Group Pty Ltd v Inner West Council

[2021] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation:

PAD Group Pty Ltd v Inner West Council [2021] NSWLEC 1235

Hearing dates:

Conciliation conference on 8-9 March 2021; final agreement filed 29 March 2021

Date of orders:

11 May 2021

Decision date:

11 May 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

See orders at [31] below

Catchwords:

DEVELOPMENT APPLICATION – change of use – flood mitigation works – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

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

State Environmental Planning Policy 55 – Remediation of Land

State Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

PAD Group Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

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

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2019/380824

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application D/2019/270 (DA). The DA sought consent for a change of use of the existing building to a residential dwelling at 33 Whites Creek Lane, Leichhardt (the site) by Inner West Council (the Respondent).

2. Initially listed for a hearing on 8 March 2021, at the conclusion of the site viewing, and at the request of the parties, I approached the Chief Judge who agreed to reallocate the matter as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. Whilst the final amended proposal remains broadly consistent with the original development application, a number of amendments cumulatively resolve the contentions raised by the Respondent, which relate primarily to flood mitigation and the extent of landscaped area.

6. In summary, the agreed amendments have the effect of protecting the existing warehouse building from a predicted flood event consistent with Council’s nominated flood planning level, and also introduce additional areas of landscape both internal and external to the building.

7. 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.

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

9. In that regard the parties agree, and I am satisfied, the Leichhardt Local Environmental Plan 2013 (LLEP) is a relevant environmental planning instrument. The site is zoned R1 General Residential, and the final amended proposal, characterised as a dwelling house, is permissible with consent.

10. The parties agree, and I am satisfied, the final amended proposal does not involve subdivision pursuant to cl 4.1 of the LLEP and meets the requirement for minimum subdivision size. The site area is agreed at 345.5sqm.

11. In their current form, neither the existing warehouse building nor the amended proposal satisfy the requirement for a minimum 20% landscaped area as set out in cl 4.3A(3)(a)(ii) of the LLEP.

12. In their current form, neither the existing warehouse building nor the amended proposal satisfy the requirement for a maximum 60% site coverage as set out in cl 4.3A(3)(b) of the LLEP.

13. Similarly, cl 4.4 of the LLEP establishes a maximum Floor Space Ratio (FSR) for the site of 0.6:1. Again, neither the existing warehouse building nor the amended proposal satisfy this development standard.

14. Consequently, the amended proposal seeks to vary the development standards for landscaped area, site coverage and FSR, and the parties are agreed the extent of variance is justified given the specific characteristics of the site, the existing building and the amended proposal.

15. Clause 4.6(3) of the LLEP requires consideration of a written request from the Applicant demonstrating that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

16. Clause 4.6(4) of the LLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and 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.

17. Additionally, cl 4.6(4)(b) of the LLEP 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.

18. The Applicant has provided a cl 4.6 written request, seeking to justify non-compliance with the landscape area development standard set out in cl 4.3A(3)(a)(ii) of the LLEP, the site coverage development standard set out in cl 4.3A(3)(b), and the FSR development standard set out in cl 4.4 of the LLEP. The written request also seeks to demonstrate the R1 Zone objectives set out in the LLEP have been met despite these non-compliances.

19. The parties agree the existing site can be characterised as a warehouse building, not originally constructed to serve as a residential dwelling. The change of use sought by the amended proposal is permissible with consent within the R1 Zone of the LLEP. Further, the nature of the existing warehouse building means that currently site coverage exceeds 60% of the site area, and the existing extent of landscaped area does not reach 20% of the existing site area.

20. The amended proposal incorporates a series of new landscaped elements in a number of areas within the site. Specifically, a proposed area of landscape over the existing concrete slab within the central atrium to the building, and a proposed new raised planted bed set outside the building footprint within the site’s front setback, which is sized to accommodate a substantial canopy tree. A number of additional proposed planter boxes serve to further increase the presence of landscape appreciable within the building and from the immediate streetscape.

21. The amended proposal does not seek to alter the site coverage established by the existing warehouse building. The proposed change of use of the warehouse building to a residential dwelling preserves the mixed building character evident in the vicinity of the site and is consistent with the objectives of the R1 General Residential zone, particularly to provide for a variety of housing types and densities.

22. In a similar manner, the amended proposal does not seek to alter the floor space currently contained within the warehouse building. The proposed change of use brings with it no perceptible change to the bulk and scale of the existing warehouse and is therefore consistent with the objectives of cl 4.4(1) of the LLEP which deal with matters of character and impacts of built form.

23. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variations to the relevant LLEP development standards.

24. The parties agree the existing warehouse building is situated on land requiring flood mitigation pursuant to cl 6.3(2)(b) of the LLEP. The agreed flood planning level affecting the site is RL18.85.

25. Under this scenario, development consent may only be granted where the amended proposal meets the jurisdictional threshold set out in cl 6.3(3). This would include rendering the amended proposal compatible with the flood hazard of the land and incorporating appropriate measures to manage risk to life from flood.

26. I am satisfied the amended proposal incorporates necessary flood mitigation measures, including a flood alarm system, an evacuation strategy, the provision of habitable floors above the flood planning level, as well as a physical flood barrier across the entirety of the site frontage and building entrance, set at the agreed flood planning level of RL18.85.

27. I am satisfied State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. A Preliminary Site Investigation Report has been provided. The amended proposal retains the existing concrete ground floor slab on the site to act as a physical barrier restricting opportunity for any potential contaminants to be exposed to occupants of the building and accordingly, the parties agree the site is suitable for its proposed use. As such, I am satisfied cl 7 of SEPP 55 has been satisfactorily addressed.

28. The parties agree, and I am satisfied, BASIX Certificate no. A346529_02 dated 16 March 2021 has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

29. The parties agree, and I am satisfied, the site is located within the Sydney Harbour Catchment as defined by State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP). I am also satisfied the amended proposal reflects the planning principles set out in cl 13 of the SREP.

30. 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.

Orders

31. The orders of the Court are:

1. Leave is granted to the Applicant to rely upon the following amended plans:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural Plans
GROUND FLOOR PLAN & MEZZANINE	DWG A001	G	23/03/21	Peter Danicic Architects
ELEVATIONS AND SECTIONS	DWG A002	G	23/03/21	Peter Danicic Architects
Landscape Plans
Ground Floor Landscape Concept Plan	A66-001	2	18/03/2021	Bell Landscapes
Mezzanine Floor Landscape Concept Plan	A66-002	2	18/03/2021	Bell Landscapes
Report
BASIX Certificate no A346529_02 dated 16 March 2021 prepared by ESD Synergy

2. The appeal is upheld.

3. Development consent is granted to D/2019/270 for the proposed change of use of the exiting warehouse building to a residential dwelling, minor alterations, flood works and landscaping at 33 Whites Creek Lane, Leichhardt subject to conditions of consent at Annexure A.

…………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (215957, pdf)

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Decision last updated: 12 May 2021