Panorama No. 1 Pty Ltd ATF Panorama No. 1 Fixed Unit Trust v Inner West Council

[2021] NSWLEC 1120

Land and Environment Court

New South Wales

Medium Neutral Citation:

Panorama No. 1 Pty Ltd ATF Panorama No. 1 Fixed Unit Trust v Inner West Council [2021] NSWLEC 1120

Hearing dates:

Conciliation conference on 30 November 2020

Date of orders:

11 March 2021

Decision date:

11 March 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The applicant is granted leave to rely on the amended plans listed at Condition 1 of 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 in respect of the amended plans in the sum of $4000 within 28 days of the date of this order.

(3)   The appeal is upheld.

(4)   Development Application DA2020/0565 for a 23-room boarding house, comprising 21 double boarding rooms, one single boarding room, one manager’s room, common room and basement carparking at 9 Victoria Street, Ashfield is approved subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Ashfield Local Environmental Plan 2013, cl 5.10

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 28, 29A, 30, 30A

Category:

Principal judgment

Parties:

Panorama No. 1 Pty Ltd ATF Panorama No. 1 Fixed Unit Trust (Applicant)
Inner West Council (Respondent)

Representation:

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

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

File Number(s):

2020/261263

Publication restriction:

No

Judgment

1. These proceedings arise following the Council’s refusal of a development application (DA 2020/0565) for the construction of a boarding house at 9 Victoria Street, Ashfield (site) pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 November 2020. I presided over the conference. During that the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the Court upholding the appeal and granting development consent to an amended application subject to the conditions in Annexure A.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the decision is one that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I accept that the proposal is satisfactory in terms of:

1. permissibility – the land is located within the R3 Medium Density Residential zone under the Ashfield Local Environmental Plan 2013 (the LEP) and that development for the purposes of boarding houses is permissible with consent. Clauses 26, 27(1) and 28 of the SEPP ARH also render the development permissible with consent.

2. accessibility – the area limits imposed by cl 27(2) of SEPP ARH do not apply because the subject site is zoned R3, not R2.

3. Clause 29(1) of SEPP ARH sets a “must not refuse” floor space ratio (FSR) control – if the proposed development has an FSR less than 1.2:1 (being the 0.7:1 FSR permitted by cl 4.4 of the LEP plus an additional 0.5:1 afforded by cl 29(1)(c)(i) of SEPP ARH), the consent authority must not refuse the application on grounds of density or scale. The proposed development has an FSR of 1.1:1 and is therefore compliant.

4. Clause 29(2) of SEPP ARH sets further “must not refuse” controls:

1. building height – the control is 12.5m (the clause adopts the LEP height control), the proposal is 9m in height;

2. landscaped area – to be compatible with the streetscape: Council has undertaken a merit assessment, including the revised landscape plans referred to in the conditions of consent and the submissions made by NSW Police regarding passive surveillance through trees, and is satisfied the control is achieved and I accept that assessment based on the planners evidence in their supplementary joint statement filed with the s34 agreement.

3. solar access – requires a minimum 3 hours direct sunlight to the common room between 9am and 3pm in midwinter: a suite of solar diagrams have been prepared, including views from the sun, and the common room receives at least 4 hours of solar access on June 21;

4. private open space – an area of at least 20sqm, with a minimum dimension of 3m – this is provided adjacent to the common room at first floor; an area of at least 8sqm with a minimum dimension of 2.5m for the manager – this is provided adjacent to the manager’s room at ground floor (south-east corner of site);

5. parking – at least 11 spaces for the boarding room; and not more than one space for the manager; 9 spaces are provided, which is 2 spaces short. A parking assessment accompanies the application, and having regard to the motorcycle and bicycle spaces provided, proximity to public transport and available street parking, the shortfall is considered to be acceptable (noting that the standard is a must not refuse standard rather than a standard which calls for refusal if not met);

6. accommodation size – not less than12sqm (excluding kitchen and bathroom) for the single room, and 16sqm (excluding kitchen and bathroom) for double rooms. The single room has an area of 12.6sqm and the doubles range between 16.1sqm and 25.0sqm.

5. Clause 30(1) of SEPP ARH sets further development standards which must be met. In that regard I accept that the amended proposal offers:

1. one communal living room where there are 5 or more boarding rooms: and a communal room is provided centrally to the building on the first floor;

2. no boarding room will have floor area greater than 25sqm (excluding kitchen and bathroom): the largest boarding room being 25sqm;

3. no boarding room to be occupied by more than two lodgers: rooms are designated single or double, and this restriction is enforced in the Plan of Management referred to in the conditions of consent;

4. adequate bathroom and kitchen facilities: each room has bathroom and kitchen facilities.

6. SEPP ARH requires a manager’s room for a boarding house with 20 or more lodgers: the proposal provides a manager’s room at ground floor in south-east corner of building.

7. Four bicycle and four motorcycle spaces required (1 for every 5 boarding rooms): 6 bicycle spaces and 4 motorcycle spaces provided.

8. Clause 30A of SEPP ARH provides that a consent authority must not grant consent unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

9. The jurisdictional test in cl 30A of SEPP ARH is not whether the design of the development is compatible with the character, or whether the consent authority is satisfied that the design of the development is compatible with character, but rather whether this question has been considered. The parties have examined this in detail and the planners, in their supplementary planning report filed with the s34 agreement, are agreed that:

1. the roof form and materials of the building have been amended to take cues from and respond to the heritage listed fire station opposite;

2. the building’s design results in broken facades that respond to the rhythm of the street in the R2 zone to the south,

3. the height of the building provides a transition from the R3 zone to the R2 zone to the south;

4. landscaping breaks up and softens the appearance of the building;

5. the building does not result in adverse shadow impacts;

6. all windows face the street, or otherwise internally to the development, limiting privacy impacts (no transparent windows face the residential development immediately adjoining to the north) and privacy impacts from the communal open space are limited by separation, which separation is further enhanced by inbuilt planter boxes.

6. Having considered the question posed by cl 30A of the SEPP ARH, I am satisfied that cl 30A is not an impediment to the grant of development consent.

Ashfield Local Environmental Plan 2013

7. Whilst the LEP remains a relevant consideration, there is no matter in the LEP which gives rise to a jurisdictional question. Permissibility and principle development standards of height and FSR are set by SEPP ARH, albeit by reference to the LEP, and the proposal complies.

8. Clause 5.10(4) of the LEP directs consideration of the impact of the proposal on nearby heritage items. In this case, the planners have agreed that the development responds to the heritage items located to the east and south-east of the site through its roof form - including parapet edge, and materials. And, as the application does not propose works to a heritage item, and is not within a heritage conservation area however, cl 5.10 does not operate to preclude this development.

Public Submissions

9. The Council as required, has considered the submissions made by members of the public in respect of the notified application (including the amendments) pursuant to s 4.15(1)(d) of the EPA Act. The planners are agreed that:

1. noise from communal open space, motorcycles and garage door is addressed in the supplementary acoustic report referred to in the conditions of consent;

2. parking is addressed in the parking report, and is considered to be acceptable;

3. the architectural response to the site and locality was refined through detailed discussions between the applicant and Council officers, resulting in a building that fits in its context and is compatible with local character;

4. the amended design offers appropriate privacy as there will be no transparent glazing to the north, and the communal open space is well setback from the boundary, which is again well separated from balconies and windows on the adjoin property to the north; to the south the building is separated from the neighbours by Norton Street; and

5. the solar diagrams have been supplemented with views from the sun and now demonstrate that solar impacts on surrounding development are acceptable.

10. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accord with the terms of the agreement.

11. The Court orders that:

1. The applicant is granted leave to rely on the amended plans listed at Condition 1 of 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 in respect of the amended plans in the sum of $4000 within 28 days of the date of this order.

3. The appeal is upheld.

4. Development Application DA2020/0565 for a 23-room boarding house, comprising 21 double boarding rooms, one single boarding room, one manager’s room, common room and basement carparking at 9 Victoria Street, Ashfield is approved subject to the conditions at Annexure A.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (266303, pdf)

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Decision last updated: 11 March 2021