Quattro Leone Holdings Pty Ltd v Inner West Council
[2019] NSWLEC 1495
•16 October 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Quattro Leone Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1495 Hearing dates: Conciliation conference on 5 & 21 August 2019 Date of orders: 16 October 2019 Decision date: 16 October 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that:
(1) Leave is granted to the Applicant to rely on the amended architectural plans listed in condition 1 of the conditions of consent at Annexure “A”.
(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $4,000.00 within 7 days of the date of the orders.
(3) The Applicant’s clause 4.6 request prepared by Ethos Urban dated 19 September 2019 for the non-compliance with the floor space ratio development standard in clause 4.4(2) of the Leichhardt Local Environmental Plan 2013 is upheld.
(4) The appeal is upheld.
(5) Development consent is granted to Development Application D/2018/24 for alterations and additions to the existing building with a new attic/roof top level and the use of the attic/roof top level for a restaurant/bar at 332 Darling Street, Balmain subject to the conditions at Annexure “A”.Catchwords: DEVELOPMENT APPLICATION – alterations to heritage listed building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Leichhardt Local Environmental Plan 2013Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Quattro Leone Holdings Pty Ltd (Applicant)
Inner West Council (Respondent)Representation: Counsel:
Solicitors:
J Ireland (Applicant)
G Christmas (Solicitor) (Respondent)
Addisons Lawyers (Applicant)
Apex Planning & Environment Law (Respondent)
File Number(s): 2018/381129 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal by Quattro Leone Holdings Pty Ltd (the applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 against the refusal by the Inner West Council (the Council) of development application D/2018/24 (the application).
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The application proposes alterations and additions to an existing heritage building situated at 332 Darling Street, Balmain (the site) including removal of an existing dwelling at the third level and a mezzanine on the second level, and a new attic/roof top level with the use of this level as a restaurant/bar.
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The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.
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As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
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The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement.
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In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.
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The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site contains a 3 storey building known as ‘the Institute Arcade’ and also the ‘Working Men’s Institute’. It is situated on the southern side of Darling Street and also has a rear frontage to, and vehicle access from, Little Darling Street.
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The site contains a mix of commercial and residential uses in two buildings, one facing Darling Street and the other Little Darling Street. The buildings are currently connected via a covered courtyard. Uses include cafés, a restaurant, offices and other commercial uses, as well as an upper level dwelling.
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The site is within the B2 Local Centre zone under the Leichhardt Local Environmental Plan 2013 (the LEP) and the proposed development is permissible with consent in that zone.
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The site is a listed heritage item under the LEP (Item I196) and is also situated within The Valley (heritage) Conservation Area (HCA).
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The application was notified and 4 objections were received raising issues with bulk and scale, amenity impacts to neighbours, parking and trade disruption.
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In the SFC, the Council raised concern with non-compliance with various objectives and provisions of the LEP including in terms of the zone objectives, land use impacts and the site’s heritage values. It was also contended that the development exceeded the permissible floor space ratio (FSR) and would have unacceptable heritage and HCA streetscape impacts, particularly having regard to the extent of impact on original fabric and built form.
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Concern was also raised in terms of impacts on on-street parking, on the amenity of neighbours from noise associated with the proposed restaurant/bar and with the impacts, particularly heritage and amenity related, associated with non-compliances with the provisions of the Leichhardt Development Control Plan 2013.
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In response to the contentions raised, the applicant amended the application. The Council was satisfied that these amendments resolved all contentions. In particular, the impact on the heritage item was reduced, and a schedule of conservation works agreed, and the amenity impacts to neighbours reduced.
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The amended development complies with the core development standards in the LEP except in the exceedence of the maximum permissible FSR of 1:1. The development proposes an FSR of 1.73:1.
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The applicant submitted a cl 4.6 written request seeking to justify the FSR breach. This was supported by the Council and submitted with the agreement.
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I have reviewed and considered the cl 4.6 written request and am satisfied, for the reasons that follow, that it demonstrates that compliance with the maximum FSR required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contravention sought. Further, that the development will be in the public interest because it is consistent with the objectives of the FSR standard and for development in the B2 zone.
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The concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5).
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The reasons contained in the cl 4.6 written request in support of the FSR variation sought, on which my finding of satisfaction with the proposed variation is based, can be summarised as, notwithstanding the non-compliance with the FSR development standard, the proposed development:
achieves the objectives of cl 4.4 of the LEP. Specifically, that, as non-residential development, the bulk, form and scale respects the local character and is consistent with the desired future character of the area. That character is eclectic in height and form. In essence, due to amendments to the upper level setbacks and at the rear, the heritage building in its presentation to Darling Street is largely unaltered and the development provides an appropriate transition in building form within the HCA to adjoining developments;
satisfies the objectives of the B2 Local Centre zone, in particular by providing a range of uses which maximise use of public transport and make a contribution to the vitality of the Darling Street commercial strip within Balmain Village, without adversely impacting the amenity of neighbours;
will result in a net reduction of 32m² when compared to the existing gross floor area of the heritage building, which currently exceeds the FSR having an FSR of 1.76:1. The FSR is therefore also reduced;
will not negatively impact upon the heritage significance of the existing building, or its presentation within the streetscape and HCA, with the development also resulting in the restoration of the original first floor layout;
will have negligible impact on the existing bulk and scale of the building thus minimising impacts to neighbours and therefore will not result in any adverse environmental impacts as a result of the variation. In addition, agreed conditions of consent include: a requirement to comply with noise impact assessment recommendations and a plan of management for the new bar/restaurant with maximum noise levels set; a required contribution to offset reduced parking which cannot be accommodated on-site due to heritage constraints however, loading and unloading will continue to be facilitated on-site; and the patron numbers for the new bar/restaurant restricted with the hours of operation also the subject of a trial period; and
is therefore considered to be in the public interest as it is consistent with the objectives of the FSR standard and of the B2 zone.
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In this regard, it is noted in particular that the existing development exceeds the FSR by more than the proposed development and that the works respect and reinforce the heritage significance of the building. Reducing the FSR to achieve compliance would require impacting the existing heritage building, by reducing its scale and prominence, and would therefore be contrary to the heritage objectives of the LEP.
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In terms of heritage considerations, the revised plans reduce the impacts on the original fabric of the heritage building. Further, or in addition, agreed proposed conditions of consent include development being undertaken in accordance with a revised schedule of conservation works, any additional works proposed to the front façade to be the subject of a separate application, retention of unpainted brickwork in its existing form, reduction in the overall height of the proposed development to below the height of the existing parapets, confinement of new services and ducts to areas already altered, and no new roof structures to be visible from Darling Street.
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There is also a requirement for a heritage architect to oversee works, provide advice throughout the construction period and to certify upon completion that the works have been carried out in accordance with heritage requirements. In addition, a heritage engineer is to advise on structural design to ensure the upper level additions do not impact on heritage significant rooms, ceilings and stairs below, and to certify that this has occurred. All contractors are required to be made aware of the heritage significance of the building.
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I am therefore satisfied that regard has been had to the required heritage considerations under cl 5.10 of the LEP.
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In meeting the requirements of cll 4.6 and 5.10, I am satisfied that the applicable pre-conditions to consent contained in the LEP are met.
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Further, I accept the parties’ advice that the amended proposal, which has been reduced in scale, has addressed the issues raised by objectors to the extent that these issues are relevant considerations for the Court.
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Accordingly, the Court orders that:
Leave is granted to the Applicant to rely on the amended architectural plans listed in condition 1 of the conditions of consent at Annexure “A”.
Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $4,000.00 within 7 days of the date of the orders.
The Applicant’s clause 4.6 request prepared by Ethos Urban dated 19 September 2019 for the non-compliance with the floor space ratio development standard in clause 4.4(2) of the Leichhardt Local Environmental Plan 2013 is upheld.
The appeal is upheld.
Development consent is granted to Development Application D/2018/24 for alterations and additions to the existing building with a new attic/roof top level and the use of the attic/roof top level for a restaurant/bar at 332 Darling Street, Balmain subject to the conditions at Annexure “A”.
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Jenny Smithson
Commissioner of the Court
Annexure A (190 KB, pdf)
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Decision last updated: 16 October 2019
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